Drunk-driving case does not spell end to alcohol at office parties

The duty of care in this case was much higher than had the employer held the party at a banquet hall or restaurant, and if the employee was not obligated to work that day.

An Ontario court decision that found a Barrie, Ont.-based employer partially responsible after a woman left an office party intoxicated and crashed her car, raises the bar on an employer’s duty of care.

But, before employers cancel this year’s holiday party, they should consider the factual basis of the case, said Michael Failes, partner in the Toronto office of Filion Wakely Thorup Angeletti, a law firm that specializes in management, labour and employment law.

Failes said the media presented the case without looking closely at its narrow, factual scope. He points out the distinguishing features of this case, namely that the employer was serving alcohol in the workplace, during working hours and that part-time employee Linda Hunt was working at the time.

“This case was not about a Christmas party at (a hotel), off hours,” said Failes. “Once you go to (a hotel) you aren’t the one serving the alcohol.”

The duty of care in this case was much higher than had the employer held the party at a banquet hall or restaurant, and if Hunt was not obligated to work that day.

While the decision raises the bar on the duty of care an employer has while employees are performing their duties, Failes said the essence of the case should not be shocking to employers.

“(Employers) can’t really believe that if they have a party where they are serving alcohol that they can’t be responsible.”

In this case, Hunt, a former part-time receptionist with Sutton Group Incentive Realty Inc., already had double the legal alcohol limit when she left an office party in December, 1994 to go to a bar with co-workers. She later crashed into a truck and sustained severe brain injuries that left her unable to return to work.

The court found the employer and the now bankrupt bar that Hunt visited following the office party jointly responsible for 25 per cent of the liability in this case and ordered them to pay $281,000 in damages.

Then 44, Hunt was answering phones and was expected to clean up after the party. The court heard that her boss became concerned about her drinking and warned her that “if you are to carry on, I’ll call (your husband) to come and pick you up.”

The judge found that the employer had “a duty to make sure (Hunt) would not enter into such a state of intoxication while on its premises and on duty so as to interfere with her ability to safely drive home afterwards.”

In this case, the employer was concerned enough to warn Hunt that he would call her common-law husband if she didn’t stop drinking. But Hunt still got behind the wheel of her car intoxicated.

The employer could have called the police if Hunt refused to hand over her keys or take a cab, said Failes.

“The right approach is to require the employee to take a cab home. But, if you don’t think someone is fit to drive, and they refuse, it is prudent to call the police.”

Waivers are also popular but have very little legal effect in these types of cases, said Failes. Waivers are not likely to be held up in court if they are intended to limit liability and could promote a false sense of security.

On top of that, waivers are an attempt to curb an employer’s duty rather than ensuring they meet that standard.

“As a sound employer, you should not be trying to avoid your legal obligations but try to live up to them,” said Failes.

While this case may have a chilling effect on employers who have traditionally taken a lax approach to work parties, it should not be interpreted as an absolute ban on companies serving alcohol at parties, said Soma Ray, employment lawyer with the Toronto office of Donahue Ernst & Young.

Ray said employers should be proactive in limiting their liability. Some things they could do include: stop serving alcohol a couple of hours before the party ends; make sure the bartender stops serving alcohol to people who appear intoxicated; provide taxi chits; provide reduced rates at hotels; encourage car pools and pay mileage to the driver; and draft language in a contract with the hotel that states that management will be informed of any employees who are cut off by the bartender.

Employers should be aggressive from the outset. Talking to employees before the party and warning them that intoxicated employees will be put into taxi cabs, and that it would be preferable that they don’t drink to that point. It’s also crucial to remind them not to drink and drive, said Ray.

“It’s about being good corporate citizens but at the end of the day the reality is you can’t have an office police monitoring every employee.”

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