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There are times when one employee can act so improperly as to cause the harassment and/or departure of another employee. These situations are often referred to as an employee going “rogue”.  This can result in claims of unjust dismissal and/or constructive dismissal, where an employee may claim that an employer is liable for the actions of its employee(s) and therefore entitled to damages directly from their employer (or former employer). 

Specifically, the employee may claim that the employer should be liable for the treatment they experienced at the hands of another employee. If successful, the employer can be held liable for significant payments associated with the actions of one or more of their employees (including potentially termination pay in connection with wrongful and/or constructive dismissal). 

In this case, the employee may still elect to bring a claim against the employee, however, they can also add the employer to the claim on the basis that both the individual and organization should be liable. 

When does an employer become liable for specific/separate actions of an employee?

For an employer to be directly liable for the actions of one or more of its employees, the employee(s) must have been both acting within the scope of their employment and engaged in the employer’s business.  

Should the necessary conditions exist, an employer will be found “strictly” liable (referred to as “strictly” because establishing liability requires no proof of personal wrongdoing by the person subject to it). 

Why could an employer be liable for the separate actions of its employees?

Employer liability for the actions of its employees is based essentially on public policy grounds.  Specifically, courts are prepared to hold that employers are liable for the following reasons:

  • The employer has created an enterprise and as part of that should accept the risk of one or more of its employees carrying out wrongdoing;
  • An employer is generally speaking in a better position to pay for damages and can spread loss through liability insurance or the pricing of goods and services.
  • Employer liability can act as a deterrent by transferring the loss to employers, which encourages employers to adopt accident prevention measures including risk management and improving training methods and enhancing methods to supervising workers.

Takeaway

Employees often have more options than they may first be aware of which can result in claims of constructive and/or unjust dismissal. For this reason, it would be wise for employers and employees to seek the advice of an employment lawyer to determine the appropriate approach in such circumstances. For more information, please do not hesitate to contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com


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