Workplace Christmas parties are just around the corner. While such celebrations are a great opportunity to strengthen team spirit and acknowledge everyone’s hard work, it is important to remember that it is not only up to employers to make sure they run smoothly—their entire workforces, managers and employees alike, are also responsible. Just think of potential situations of harassment where alcohol and fun times are combined. Who is responsible for what when it comes to Christmas parties? Employer’s obligations Legal framework Generally speaking, many existing employer (and employee) obligations provided for in legislation, regulations or company policies, can be transposed to employer-organized Christmas parties. This is particularly true where harassment is involved. In recent years, the scope of legislation offering protection against harassment and violence in the workplace has broadened. In addition to the obligation to take reasonable steps to prevent psychological harassment1, employers, since 2021, must take measures to protect an employee who has been “exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace.”2 Even more recently, on November 23, 2023, the Minister of Labour introduced Bill 42, An Act to prevent and fight psychological harassment and sexual violence in the workplace (the “Bill”). Although the Bill is only at the introduction stage and may see a number of amendments, the Minister explains that its aim is to make workplaces healthier, more respectful and safer, and to eliminate unacceptable behaviour.3 Further information on Bill 42 will be provided in a separate publication. Employer’s management rights When an employer witnesses or otherwise becomes aware of inappropriate behaviour at a Christmas party it has organized, it is well within its rights to investigate and take appropriate action, including disciplinary action up to and including dismissal.4 For example, an employer could impose a three-day disciplinary suspension on an employee having committed a gesture of a sexual nature during a Christmas party.5 Dismissal was also deemed to be an appropriate measure for an employee who committed acts of violence against his colleague and former spouse at a Christmas party.6 An employer’s investigation can sometimes even cover events having taken place after a Christmas party, outside the workplace. For example, in a decision from 2022, an arbitrator reiterated that the employer in question was entitled to conduct an investigation into allegations of sexual assault and harassment that were said to have taken place in a hotel room after a Christmas party, because the connection between the personal activities and the employer was sufficient.7 Despite the private nature of the events, they had a negative impact on the work climate and, therefore, an employer investigation in which employees were required to cooperate was warranted.8 Similarly, another arbitrator upheld the dismissal of an employee who had assaulted his supervisor, even though the events had occurred during an after-party.9 Measures to avoid abusive and excessive behaviours Employers can implement a number of measures before their parties to avoid abusive and excessive behaviours, including: Reminding employees of applicable policies, including codes of conduct and harassment prevention policies Authorizing only a limited number of alcoholic drinks per person Closing the bar or ceasing alcohol service a few hours before the party’s end Making sure there is enough food, water and non-alcoholic beverages throughout the evening Providing individual hotel rooms Providing a safe-ride-home service Obligations of employees During employer-organized Christmas parties, employees who attend as part of their employment do so under the same status they hold with their employer.10 They must therefore comply with their various obligations, including having good manners and being civilized, not endangering their or their colleagues’ health and safety, using appropriate language and not engaging in harassment and, more generally, adhering to their employers’ policies. In a sense, the party becomes an extension of the workplace. In the specific case of managerial staff, employers are entitled to have higher expectations of exemplary behaviour. Moreover, when an employer investigates events that are said to have taken place during or after such a party, employees are required to cooperate in good faith. What about witnesses? As mentioned above, making sure that a Christmas party runs smoothly is everyone’s business. However, is it realistic to rely on employees to report problematic behaviour they may witness during such events? Is the duty of loyalty sufficient to create a general obligation to report all wrongful behaviour? The answer is not clear. As for managerial staff who are employers’ eyes and ears, they are even further bound by their duty of loyalty given their line responsibilities.11 Employers can therefore expect them to report problematic behaviour that takes place at a Christmas party. In the case of regular employees (non-managerial staff), the imposition of a general obligation to report all wrongful behaviour was deemed unreasonable,12 as such an obligation “[translation] jeopardizes the serenity of the work climate.”13 However, there are cases where the obligation to report is legitimate. It applies where the obligation is intended to protect the health and safety of colleagues and the public. The very nature of the duties performed by an involved employee will be decisive in determining the validity of the obligation to report.14 In all cases, that employee must dissociate themselves from the wrongful behaviour and avoid any participation. Lastly, despite the absence of a general obligation to report harassment, employers may validly encourage employees to report harassment, without making it mandatory.15 Conclusion Employer-organized Christmas parties are certainly something to look forward to. With the situation in recent years and the explosion of telecommuting and hybrid working conditions, such events are even more important to bring people together. However, they have to remain fun for everyone. With simple yet reliable measures, such as making everyone aware of their own responsibilities and mutual respect, such celebration can be a real success. Happy festivities to all! The Act respecting labour standards, CQLR, c. N-1.1, section 81.19. The Act respecting occupational health and safety, CQLR, c. S-2.1, section 51 (16). Office of the Minister of Labour and Minister responsible for the Mauricie and Nord-du-Québec regions, “Le ministre Jean Boulet présente le projet de loi 42, Loi visant à prévenir et à combattre le harcèlement psychologique et la violence à caractère sexuel en milieu de travail Gouvernement du Québec” (quebec.ca), November 23, 2023 (in French only). For more information, read the following bulletin: Lavery, “The return of Christmas parties: What employers need to know,” December 9, 2022, URL: The return of Christmas parties: What employers need to know (lavery.ca). Teamsters Québec, section locale 1999 and Univar Canada ltée (Jean-Martin Gobeil), 2020 QCTA 344. Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 500 (TUAC-FTQ ) and Royal Vézina inc. (St-Hubert), 2017 QCTA 304. Syndicat des salariés(es) de l’agroalimentaire de Ste-Claire (CSD) and Kerry Canada inc. 2022 QCTA 224. See also: CSN-Syndicat du personnel de bureau du CISSS de la Gaspésie and Centre intégré de santé et de services sociaux de la Gaspésie, 2023 QCTA 131. Syndicat des inspecteurs du RTM-CSN and EXO (Charles-David Lapointe), 2020 QCTA 24. Association internationale des machinistes et des travailleuses et travailleurs de l'aérospatiale, district 140, section locale 2309 and Servisair (Avo Minassian), D.T.E. 2009T-448 (T.A.). Shell Canada ltée and Travailleurs unis du pétrole du Canada, section locale 121 du SCEP, D.T.E. 2010T-68 (T.A.); Journal de Montréal and Syndicat des travailleurs de l’information du Journal de Montréal (CSN), 2015 QCTA 52. Id.; See also: Viterra inc. and Unifor, Local 2022, 2020 QCTA 565. Shell Canada ltée and Travailleurs unis du pétrole du Canada, section locale 121 du SCEP, D.T.E., supra, note 11, para. 88. Id. Journal de Montréal and Syndicat des travailleurs de l'information du Journal de Montréal (CSN), supra, note 11.

On June 1, 2023, Bill 19 entitled An Act respecting the regulation of work by children (the “Act”) which establishes, in particular, a minimum working age of 14 and a maximum number of hours of work for children subject to compulsory school attendance, was assented to. Most of the Act’s provisions came into force on June 1, 2023. This Act was presented in the wake of a massive and noticeable entry of young workers into the job market in a context where the shortage of unskilled workers was exacerbated by the COVID-19 pandemic. Work performed by these children has received significant media coverage in recent months, in particular because of the concerns raised regarding their health and safety and the risk of school dropouts and disengagement. Below is a brief overview of the existing rules governing work by children and the amendments introduced by the Act. A.        RULES GOVERNING WORK BY CHILDREN BEFORE THE ACT CAME INTO FORCE Before the Act was passed, there was no minimum working age or maximum number of hours of work per week for children in Quebec. However, the Act respecting labour standards (the “ALS”)1 already provided certain rules applicable to work performed by children. The following rules remain unchanged by the Act: Prohibition of work performed by a child that is disproportionate to the child’s capacity, or that is likely to be detrimental to the child’s education, health or physical or moral development.2 Prohibition of work performed during school hours by a child subject to compulsory school attendance.3 In Quebec, the obligation to attend school extends to the last day of school in the school year in which the child reaches 16 years of age or in which the child graduates if they are under 16 years of age.4 The employer must also ensure that the child can attend school during school hours.5 Prohibition of work by a child between 11 p.m. and 6 a.m. if the child is subject to compulsory school attendance, except in the case of newspaper deliveries or other cases provided for in the Regulation, in particular for certain categories of artists.6 Obligation to ensure that the child can be at the child’s residence between 11 p.m. and 6 a.m., except in the case of a child no longer subject to compulsory school attendance and in the cases provided for in the Regulation.7 In addition, certain regulations adopted under the Act respecting occupational health and safety stipulate a minimum age for performing certain tasks (e.g., diving, excavation, demolition, etc.). B.        AMENDMENTS INTRODUCED BY THE ACT 1)   Amendments to the Act respecting labour standards and the Regulation respecting labour standards Minimum age to perform work: The ALS was amended to set the minimum working age at 14,8 except as provided in the Regulation. The exceptions are as follows: a)     Creator or performer in a field of artistic endeavour referred to in the first paragraph of section 1 of the Act respecting the professional status of artists in the visual arts, film, the recording arts, literature, arts and crafts and the performing arts; b)     Deliverer of newspapers or other publications; c)     Babysitter; d)     Child who provides homework assistance or tutoring; e)     Child working in a family enterprise with fewer than 10 employees if the child is a child of the employer or, where the latter is a legal person or partnership, a child of a director of that legal person or of a partner of that partnership, or if the child is a child of the spouse of one of those persons; f)       Child working in a non-profit organization having social or community purposes, such as a vacation camp or recreational organization; g)     Child working in a non-profit sports organization to assist another person or provide support, such as an assistant instructor, assistant coach or scorekeeper; h)     Child working in an agricultural enterprise with fewer than 10 employees, where the child performs light manual labour to harvest fruits or vegetables, take care of animals or prepare or maintain soil. In this particular case, the child must be 12 years of age or over. Note that for the application of each of the above exceptions, the employer must obtain the consent of the holder of parental authority using the form established by the CNESST9 no later than July 1, 2023. In addition, with respect to the exceptions in paragraphs (e) to (h) above, such children must work under the supervision of a person 18 years of age or over at all times. Maximum number of hours of work: 17 hours per week,10 including a maximum of 10 hours Monday through Friday for children subject to compulsory school attendance, except during periods of more than seven consecutive days without educational services offered to the child. This new labour standard will come into force on September 1, 2023. Notice of termination of employment: No later than July 1, 2023, an employer who employs a child under 14 years of age performing work that is now prohibited must send the child a notice of termination of employment. The length of the notice varies depending on the child’s years of service: -       Three months to less than one year of uninterrupted service: one week’s notice -       One to two years of uninterrupted service: two weeks’ notice -       Two years or more of uninterrupted service: three weeks’ notice The employer may have the child perform work during the period of notice or pay the child a compensatory indemnity equal to the child’s regular wage, excluding overtime, for a period equal to the period or remaining period of notice. The indemnity to be paid to a child who is remunerated in whole or in part by commission is established based on the average of the child’s weekly wage, calculated from the complete periods of pay in the three months preceding the termination of employment. The child may also require the employer to issue a work certificate setting forth the nature and the duration of the child’s employment.11 Should the employer fail to pay the sums to which the child is entitled, the provisions relating to civil recourses set out in the ALS12 will apply. Penalties: An employer who fails to abide by the provisions governing the work of children commits an offence and is liable to a fine under the ALS. Fines are doubled in the event of a repeat offence. Effective date: The Act’s amendments to the ALS and the Regulation came into force on June 1, 2023, with the exception of the maximum number of hours of work for children subject to compulsory school attendance (section 3), which will come into force on September 1, 2023.   2)   Amendments to the Act respecting occupational health and safety The Act also amends provisions of the Act respecting occupational health and safety that are already being amended by the Act to modernize the occupational health and safety regime (“Bill 27”), not all of which are currently in force. The amendments introduced by the Act have or will come into force on the same dates as the provisions of Bill 27. The amendments introduced by the Act regarding occupational health and safety include the following: Prevention program: The program must include the identification and analysis of risks that may affect the health and safety of workers in the establishment, but more specifically those affecting workers who are 16 years of age or under. The same applies to establishments subject to the obligation to develop an action plan. Health and Safety Committee: The committee’s functions include participating in the identification and analysis of risks that may affect the health and safety of workers in the establishment, including those that may particularly affect workers who are 16 years of age or under. Health and safety representative and health and safety liaison officer: They identify situations that may be hazardous to workers, including those specific to workers who are 16 years of age and under, and make recommendations to the Health and Safety Committee, the employer and the union, if any, regarding tasks that should not be performed by workers 16 years of age or under. In conclusion, the Act introduces major changes regarding the supervision of work of children, in particular by setting the minimum working age, with certain exceptions, at 14 years of age and by limiting the working week of children subject to the obligation to attend school. Most of these provisions, which came into force on June 1, 2023, require swift action on the part of the employers concerned, and are likely to have a significant impact on work schedules and the available workforce in a number of businesses as the summer approaches. 1 CQLR, c. N-1.1 (the “ALS”). 2 Section 84.2 of the ALS. 3 Section 84.4 of the ALS. 4 Section 14 of the Education Act, CQLR, c. I-13.3. 5 Section 84.5 of the ALS. 6 Section 84.6 of the ALS and section 35.1 of the Regulation respecting labour standards, CQLR, c. N-1.1, r. 3 (the “Regulation”). 7 Section 84.7 of the ALS and section 35.2 of the Regulation. 8 Section 84.3 of the ALS.   9 The CNESST form entitled “Consentement pour le travail d’un enfant de moins de 14 ans” [in French only] can be found here: https://www.cnesst.gouv.qc.ca/fr/organisation/documentation/formulaires-publications/consentement-travail-enfant-moins-14-ans 10 Section 84.4 of the ALS. 11 Section 84 of the ALS. 12 Sections 98 and following of the ALS.

After two years of navigating COVID-19, the end of 2022 will be an opportunity for employers to organise larger activities for their employees, such as Christmas parties. The purpose of this newsletter is to make employers aware of their obligations during the holiday season festivities. Below, we will address the following three issues: industrial accidents, disciplinary measures and psychological harassment. Although Christmas parties are generally held outside of the workplace and outside normal working hours, an incident that occurs on such an occasion may qualify as an “industrial accident” within the meaning of the Act respecting industrial accidents and occupational diseases.1 Courts will consider several factors in weighing whether or not such an incident will constitute a work-related accident, including the purpose of the party, the time and place where it was held, whether or not it is organized and financed by the employer, and the presence or absence of a relationship of subordination at the time of the incident. None of these factors are decisive: they serve as a guideline for the tribunal. As many decisions have both granted2 or rejected3 claims in such circumstances. In one case where a Christmas party had been organized by the employer and was intended to encourage a sense of cohesion and belonging amongst the employees, an injury to the coccyx suffered by an employee while dancing with a co-worker was qualified as an industrial accident.4 However, in another case where an employee was injured on an escalator while escorting a drunken co-worker after a Christmas party, the tribunal ruled that the female employee had not suffered an industrial accident due to the absence of authority exercised by the employer at the time of the fall and also because the event was only intended to permit colleagues to fraternize and spend time together and not to improve the work environment.5 In the context of its management rights, an employer may, in certain circumstances, discipline an employee for behaviour which occurred during a Christmas party.6 The degree of the employer’s involvement in the organization of the party and the private nature of the party are important factors in determining whether the employer is justified in imposing disciplinary measures in such a context. For example, an arbitrator upheld the dismissal of an employee who repeatedly hit a colleague and former spouse during the employer's Christmas party held on its premises.7 The fact that the violent acts were committed during a party rather than in the direct context of work was not considered a mitigating factor. This disciplinary power is part of the employer's obligation to ensure a violence-free workplace. This obligation has gained in importance since the recent addition to the Act respecting occupational health and safety8 of the employer's obligation to “take the measures to ensure the protection of a worker exposed to physical or psychological violence, including spousal, family or sexual violence, in the workplace”.9 In another case, the arbitrator concluded that the employer could not discipline an employee for acts committed at a Christmas party organized and entirely financed by the employees and which took place outside the workplace.10 On another note, a single act of serious conduct at a Christmas party may constitute psychological harassment. A complaint for psychological harassment was upheld against an employer in a situation where the owner had touched the breast of an employee by slipping an ice cube into her sweater.11 This contact, a single gesture, was qualified by the arbitrator as serious conduct amounting to psychological harassment. The arbitrator also concluded that excessive alcohol consumption had no mitigating effect on the seriousness of the act committed. Sexual comments, forced touching and kissing by an employee during the Christmas party were also deemed to constitute psychological and sexual harassment by the courts justifying, in certain circumstances, dismissal.12 Conclusion In light of the foregoing, an employer must exercise caution and adopt measures to reduce the risks associated with the organization of Christmas parties, given that they may be held responsible for accidents or various acts or behaviour that occur during such gatherings. [1] CQLR, c. A-3.001, s. 2. [2] See in particular Fafard et Commission scolaire des Trois-Lacs, 2014 QCCLP 6156; Battram et Québec (Ministère de la Justice), 2007 QCCLP 4450. [3] See in particular Environnement Canada et Lévesque, 2001 CanLII 46818 (QCCLP), par. 35-39; Desjardins et EMD Construction inc., 2007 QCCLP 496. [4] Boivin et Centre communautaire juridique de l'Estrie, 2011 QCCLP 2645 [. [5] Roy-Bélanger et Ressources Globales Aéro inc., 2021 QCTAT 1739 [Quebec’s Tribunal administratif du travail]. [6] Teamsters Québec, section locale 1999 et Univar Canada ltée (Jean-Martin Gobeil), 2020 QCTA 344 (L. Viau). [7] Travailleurs et travailleuses unis de l'alimentation et du commerce, section locale 500 (TUAC-FTQ) et Royal Vézina inc. (St-Hubert) (Hicham Alaoui), 2017 QCTA 304 (F. Lamy). [8] CQLR, c. S-2.1. [9] Act respecting occupational health and safety, CQLR, s. 2.1, a. 51, par. 1 (16). This obligation was added pursuant to the Act to modernize the occupational health and safety regime (2021, c. 27, a. 139), [10] Syndicat de la fonction publique et parapublique du Québec et Société de l'assurance automobile du Québec (Joffrey Lemieux), 2021 QCTA 439 (C. Roy). [11] S.H. et Compagnie A, 2007 QCCRT 0348, D.T.E. 2007T-722 (T.A.) (F. Giroux). [12] Pelletier et Sécuritas Canada ltée, 2004 QCCRT 0554 (M. Marchand).