Employer Owed Duty of Care to Third Parties
By Yosie Saint-Cyr, LL.B., Editor at HRinfodesk.com---Canadian Payroll and Employment Law News,
Updated November 2004
There have been many lawsuits in which employers have been held responsible for not providing a safe workplace and for not protecting employees from harm. The principle that an employer is to provide a safe workplace and protect employees from harm has even been extended to include a duty of care to third parties from negligent actions of their employees. But do employers owe a duty of care to third parties who are injured as a result of the negligent driving of an employee who becomes intoxicated during and outside working hours?
In September 2000, an Ontario employer was found partly responsible for failing to prevent an intoxicated employee from driving home, even though the employer did not supply any alcohol to the employee. The employee in question had a long history of problem drinking, for which he had recently received three months' treatment arranged by his employer. He had voluntarily signed a “Last Chance Agreement” that made his continued employment dependent on not drinking on the job, but during working hours he would secretly drink in his car, which was parked in the employer's parking lot. Although the employer had a policy prohibiting drinking during office hours, it was common to find beer and liquor bottles at the back of the parking lot.
On the day on which the accident occurred, the employee-who had been drinking on the job and was severely intoxicated, got into his car and drove himself home. The employer took no measures to stop the employee from driving because the employee gave no sign of being intoxicated. After spending some time at home, the employee-still severely intoxicated-went out again, and this time caused a major accident in which another driver was seriously injured. The other driver who suffered injuries sued the employer. The employer was found 30% liable for the injuries suffered by the other driver because it had failed to monitor the employee's drinking or the parking lot where employees were known to consume alcohol, and also the employer had failed to stop the employee from driving home intoxicated. According to the court, the employer should have sent the employee home in a cab, or removed his car keys and taken custody of his car, or placed him in the care of a union representative or other responsible person.
On appeal, the decision against the employer was overturned. In reaching its decision to clear the employer of any liability for the injuries suffered by the driver whose car was struck by the employee, the appeal court addressed three fundamental questions. First, does this case meet the conditions for the application of duty of care? Second, the employer's responsibility and failure to control, supervise, and monitor its premises and employees, especially this employee, whom the employer knew or should have known as a problem drinker. Third, if there exist a duty of care, does it logically extend to third parties?
The court noted that for duty of care to exist, the relationship between the parties must be close enough that one party could reasonably contemplate that carelessness on its part might harm the other party i.e., because of the employer's carelessness, the employee might suffer harm. And if a duty of care is found to exist in a particular case, the court must also find that there is no consideration that deny or limit that duty of care, the class of persons to whom it is owed, or the damages that may flow from the violation.
On the second question, the court in overturning the first judgment in favour of the employer remarked that there is a clear duty of care for an employer to provide a safe work environment for its employees but… that when the employer was informed that the employee had a drinking problem and asked for help, it did not impose a new or special duty on the employer to monitor that specific employee for his sake. The monitoring and obligations are for the workplace as a whole. The focus in on the workplace and in broad terms the duty of care does not extend beyond the workplace. The employer was put on notice that this employee had a problem and took all the measures possible to help and accommodate the employee. It was the employee's responsibility to take advantage of this help and carry out the terms of accommodation and the last chance agreement. It was the employee's responsibility and later on, his failure to live up to the conditions of his last chance agreement that caused the breach in the employment relationship.
On the third, the appeal court held that the trial judge was wrong to conclude that the employer's duty of care extended beyond the workplace. It is extreme and a novel idea to expect an employer to determine and monitor if it is safe for its employees to drive home. “It was wrong to think that the employer had a duty of care to protect the employee from the consequences of his alcoholism, and that the duty of care extended beyond the workplace and beyond the employee himself, encompassing all those that the employee might encounter on the highway at anytime after leaving the workplace.” Particularly when the employee drove himself home without any mishaps. The fact that the employer knew of the employee's drinking problem, had set up accommodation and was aware that some drinking was occurring on its premises was not sufficient enough to extend the duty of care to all members of the public who may come into contact with its employees outside of the workplace.
This is not a clear case where the employer provided the alcohol to the employee, or served the alcoholic beverage on its premises or during a company sponsored-event, or knows clearly that the employee is intoxicated and yet does nothing to prevent the intoxicated party from acting in a potentially dangerous manner, such as driving while impaired.
Related Articles and FAQ:
Employer Liability for the Actions of Employees under the Influence of Alcohol
Do's and Don'ts of Company-Sponsored Events
Q & A: Are company-sponsored events taxable benefits for employees?
Fact Sheet on Gifts and Awards