Question

What factors are relevant to determining whether an employer should be liable for the wrongful conduct of an employee? What can an employer do to minimize its potential liability (and the liability of the directors, if the employer is a corporation) for the actions of its employees?

Answer 1

Introduction:

Employers, and not the employees themselves, will often be held liable for the conduct of their employees. This is true even if the employer had no intention to cause harm and played no physical role in the harm. To understand why, you have to understand two basic concepts that underlie employee liability.

First, employers are seen as directing the behavior of their employees and accordingly must share in the good as well as the bad results of that behavior. By the same token that an employer is legally entitled to the rewards of an employee's labor(profit), an employer also has the legal liability if that same behavior results in harm.

Second, when someone is injured to harmed and needs to be compensated, who is the most likely to pay: the employee or the employer? Fair or not, the legal system is interested in making the victim whole, and assigning liability to the employer rather than the employee has the best chance of meeting that goal.

Yes, the employers are liable but under certain conditions. By law, anyone who orders someone else to perform duties on his behalf is legally bound to repair harm caused during the performance of those duties.

The law is strict: once the victim proves that an employee committed a fault during the performance of these duties, the employer is presumed responsible, even if the employer is not at fault.

The basic test for vicarious liability of an employer is whether the employee's tort was committed within the scope of employment. Determining exactly what constitutes conduct "within the scope of employment" is a difficult task and the subject of numerous judicially developed rules and guidelines. Therefore, identifying a precise framework here is not practical. In determining whether an employee has departed from the course and scope of their employment however, a number of factors should be considered and weighed. These include, but not limited to:

- Intent of the employee

- Nature, time and place of the employee's conduct

- type of work the employee was hired to do

- incidental acts the employer should reasonably expect the employee to do

- amount of freedom allowed to the employee in performing his or her duties: and

- amount of time consumed in the personal activity

The factors relevant to determining whether an employer should be liable for the wrongful conduct of an employee are stated below:

1. The person at fault is an employee of the employer being sued.

A person is an "employee" when there is a relationship of subordination between the employer and employee. This generally means that the employer exercises control, supervision or direction over the employee.

Some factors that might show that a relationship of subordination exists are giving orders and instructions on how a task should be performed. An obligation to report on the work performed is another factor.

2. The employee committed a fault.

Generally, a fault is committed when a rule of conduct based on custom, usage or the law is broken. To see whether an employee committed a fault, the employee's conduct must be compared with that of a careful and diligent person performing the same duties in similar circumstances.

3. This fault was committed while the employee was performing his duties.

An employee is performing his duties when he is acting on behalf and in the interests of the employer by obeying his employer's orders or carrying out tasks for which he was hired. An employer could, for example, be held responsible for an employee in these situations:

a) The employee performs his duties poorly and his negligence or lack of skill or caution causes damage.

b) The employee performs a task that is not exactly the task for which he was hired, but is for the benefit of his employer. This could be the case with an employee who is a receptionist in a repair shop and takes the initiative of repairing something for a customer even though this is not his area of expertise, and it ends up causing harm.

To see whether the employer is responsible, it is also necessary to consider what the employee was trying to accomplish. An employer will probably not be held responsible if the employee's act was not job-related, even if the act took place at the workplace or during working hours. Example: An employer would not be responsible if an employee took a drill from work to do home renovations and injured someone.

Careful! In some situations, an employer can be held responsible for the fault of an employee, even if the employee was not acting in the context of his work or for the benefit of his employer. For example, a bank might be responsible for a bank clerk cheating vulnerable clients if the bank was failed to put adequate security measures into place.

An employer can take the below steps where an employer prove to avoid being held responsible or to minimize its potential liability towards his employee:

1. The employer did not employ the person who committed the fault.

2, The employee did not commit a fault.

3, The employee's fault was committed outside of the performance of his duties.

4, The damages were due to the fault of the victim. An employer can escape responsibility by proving that damages were completely the fault of the victim. The victim might also be found partially responsible. When this happens, the court can rule that the responsibility be shared between the victim, the employee(if relevant) and the employer. This lessens the contribution of the employer.

5, The Damages were the fault of a third person. An employer can completely escape responsibility by proving that the person who caused all the damages was neither the victim nor an employee, but another person.

6, The damages were due to an "act of God" ("superior force").

An act of God(also known as "superior force") is an unpredictable and unstoppable event that causes harm or prevents a person from respecting legal obligations. Examples include: a natural disaster, such as torrential rain, an ice storm, a tornado etc,.