skip to main content
December 16, 2015

Hark the Holiday Employer Liability Angels Sing

Author Hendrik Nieuwland


It’s never a good idea to dismiss your employee during the holiday season. Clearly, this applies to cases where the employee is being dismissed on a without cause basis and with compensation. Judges are usually sympathetic to dismissed employees who are asked to leave at this time of year and therefore, there is always the risk that a Court could increase the notice period beyond what might otherwise be considered to be normal.

If you are considering the dismissal of one of your employees at this time of year, ask yourself why the dismissal cannot wait until January. If there is no sound business reason for doing it now, it’s probably best to postpone the dismissal.

Although there may be those who disagree, these considerations do not apply when dismissing an employee for cause. Where cause is alleged to exist for the dismissal, it is usually better to proceed with the dismissal soon after you have completed proper due diligence in order to avoid any allegation that you condoned the employee’s conduct by not acting sooner. However, even in these circumstances, extra steps should be taken to make sure that the dismissal is handled professionally and with the utmost respect for the employee.

Alcohol Consumption

Although it may not be the popular choice, hosting an alcohol-free holiday party is often the wise choice. In Jacobsen v. Nike Canada Ltd., the employer was held liable for an employee’s injuries resulting from a motor vehicle accident. The basis for liability was the fact that the employer had provided the employee with alcohol at work, which ultimately led to the injuries.

The court in Nike determined that the employer failed to take reasonable care for the safety of its employee. Not only did the employer provide its employee with alcohol in the workplace, but the employer did not monitor the consumption of such alcohol and took no steps to ensure that its employee did not drive while impaired. It was held that the employer knew, or should have known of the employee’s alcohol consumption and that the employee was likely impaired. On that basis, the employer should have taken positive steps to prevent the employee from drinking and driving, which the employer did not do.

Similarly, in Hunt v. Sutton Group Incentive Realty Inc., the employer was held partly liable for injuries sustained in a car accident by an employee who drove home impaired after the company’s Christmas party. The court held that the employer did not discharge its duty to ensure the employee got home safely. Although this decision was overturned by the Ontario Court of Appeal, the reason for overturning the decision was in regard to the trial judge’s direction to the jury and not the trial judge’s reasoning regarding liability.

An employee who drives impaired after a holiday party poses a foreseeable harm to not only themselves, but to the public at large. Employers may be liable for injuries sustained by such employee. Thus, employers need to take proper steps to reduce their liability.

The most prudent way for an employer to limit their exposure to these types of claims is to host an alcohol-free holiday party. However, in cases where an employer chooses to serve alcohol at a holiday party, certain measures should be taken to limit liability:

  • The employer should highly publicize that the company expects its employees to
    avoid driving while under the influence;
  • The employer should provide taxi chits for employees to discourage them from
    drinking and driving;
  • The employer should restrict and monitor the amount of alcohol consumption
    consumed by each guest. This may include having a cash bar as opposed to an
    open bar all evening;
  • The employer should assign supervisors to monitor alcohol consumption and provide them with the authority to cut off employees who they believe have consumed too much alcohol.


Believe it or not, there is still a sharp increase in the number of harassment complaints filed this time of year as compared to other months. Often, the conduct complained about involved inappropriate touching, kissing or comments. Usually these acts are precipitated by alcohol consumption and can simply be a case of poor judgment.

Many companies are diligently creating work environments where mutual respect is the norm, and therefore the issue of harassment at this year’s holiday party is not high on the radar screen. For others, it may be wise to include specific mention in the memo on alcohol consumption, that the company expects employees to behave professionally and respectfully to each other during the event. Another good idea is to plan an early redistribution of the workplace harassment policy.


The holiday season brings with it an opportunity for employees to come together and socialize outside of their usual work environment. The result of such activity includes greater social bonding, improved relationships and an overall increase in company morale. By addressing the issues above, and limiting any harassment or alcohol-related incidents at a company holiday party, an employer can ensure a much easier transition into the new year. - See more at:

65 Queen Street West, Suite 1800, Toronto, Ontario M5H 2M5
T 416 304 6400 F 416 304 6406