Can an employee be dismissed for inappropriate behaviour?
At this time of year, it’s common for organizations to hold holiday parties for staff. I use the term “holiday party” deliberately, as most employers attempt to be mindful of the multicultural nature of our society and avoid having the occasion focused on the holiday of one particular group.
The holiday party can be an opportunity for management and staff to interact in a more relaxed social setting, improve relationships with their colleagues and, by extension, improve their working relationships. All of this can have a very positive impact on the workplace.
However, the holiday party has the potential to create a number of legal and practical difficulties for the employer.
Every holiday party is different. Some are small, low-key affairs within the workplace. Others may be lavish off-site events with food, drinks and dancing. Whatever the nature of the event, most of us have seen employees who seem to forget the event is a work function and even though they might not be at their usual place of work, they should not let loose as they might on a Saturday night with friends.
Whether it is dancing on a table, flirting with the boss or making offensive remarks, an employee’s behaviour at a holiday party can have very serious implications. To begin with, inappropriate behaviour will impact her reputation at the workplace. In addition, it may impact the viability of her continued employment. It is not difficult to imagine that colleagues who overhear an employee making racist or homophobic comments at a holiday party will no longer want to work with that individual.
The question employers often face is whether they can discipline or dismiss an employee as a result of their behaviour at the holiday party or other social gatherings. When I advise clients, the answer I offer is quite similar to the answer when I am asked whether employees can be disciplined or dismissed as a result of their online conduct: If an employee’s conduct impacts the reputation of the company, the working relationships of the employees or the company’s ability to manage the employee, there will be cause for discipline.
Whether there will be just cause for dismissal must be assessed like any other allegation of misconduct: The employer must adopt a contextual approach and consider not only the conduct in question, but the entirety of the relationship. This will include the employee’s length of service, any past disciplinary incidents and the impact of the misconduct on the continuing relationship.
Summary dismissal will only be sanctioned by the courts where it is proportionate to the misconduct, bearing in mind all of the other relevant factors. Otherwise, some lesser form of discipline will be appropriate.
That being said, whenever I am asked whether an employer can dismiss an employee, I remind them that while there may not be just cause for dismissal, employers always have the right to terminate an employment relationship on a without-cause basis by providing the appropriate notice or pay in lieu thereof.
In many cases, while the law might not consider there to be just cause for dismissal, the employer may have reached the conclusion it would be better off without the employee in question. As a result, it can bring about the end of the employment relationship in this manner.
In order to reduce the likelihood of problems at a holiday party, employers should have very clear policies and make it clear to management and staff that they apply in off-site situations, such as holiday parties. Sexual harassment and other policies should be highlighted, as should responsible drinking policies.
In tandem with those policies, the employer should make reasonable efforts to control employees’ alcohol consumption. Among other things, this should include elimination of open bar events in favour of the ticket system, which allows some control over each individual’s consumption (although this is obviously not foolproof). In addition, having trained servers can be helpful.
Employers should also make reasonable efforts to ensure no one drives while intoxicated. They should have taxi chits available, as well as individuals near the exits who will attempt to identify any employees who have had too much to drink and should not drive. Otherwise, an entirely different type of liability may arise.
While it is impossible to completely eliminate all risks, employers should approach holiday parties and similar gatherings with caution. Like many other issues, it is important to have clear and effective policies in place, and to publicize and follow with them.
In particular, managers should be trained with respect to the policies and understand that at such gatherings, they are representatives of the organization and must make reasonable efforts to ensure that policies are followed. Otherwise, your festive occasion can result in potential liability for harassment, injuries arising out of an automobile accident, or worse.