Employer Liability for Actions of Employees under the Influence of Alcohol Appealed
By Yosie Saint-Cyr, LL.B., Editor at HRinfodesk.com---Canadian Payroll and Employment Law News,
Updated November 2004
The Ontario Court of Appeal has overturned the 2001 decision in which an employer was found 25% liable for the injuries suffered by an employee in a car crash that occurred after she became intoxicated at a company sponsored event, by failing in his duty to provide a safe workplace and keep the employee from harm, which would have required the employer to maintain a supervised bar, monitor his employee's alcohol consumption, and take ‘actual' steps to prevent the intoxicated employee from driving her car home.
The case of Hunt v. Sutton Group Incentive Realty Inc. (August 14, 2002) will be directed for a new trial to decide on liability and damage on the bases that the Appeal Court found substantive errors in law in the trial judge's judgment. The substantive issue considered in this appeal that warrant a new trial is the extent of the duty of care owed by an employer to an employee driving home after an office Christmas party and the main procedural issue is the exercise of the trial judge's discretion in discharging the jury upon grounds of complexity and publicity. A new hearing may be delayed if the employee seeks leave to appeal to the Supreme Court of Canada.
The 2001 Ontario Superior Court decision was the latest case among many that established and expanded employer liability for the actions of employees under the influence of alcohol, in and out of the workplace. Reinforcing the underlying legal duty of employers to protect their employees from harm - which can apply even if the harm is caused by the employees themselves, and occurs outside of the workplace.
The event was held during office hours and featured a self-serve open bar where employees and customers could consume alcohol. Late in the afternoon the employer noticed that the employee was intoxicated. He offered to call her husband to pick her up, but she declined. Afterwards, as the event was coming to a close, the employer offered all of his employees a cab to take them home, and employees who had not been drinking also offered their fellow employees rides. But instead of going straight home, the intoxicated employee went to a nearby pub with some of her colleagues and continued drinking. Three hours after she had left the employer sponsored-event, she drove herself home in bad weather, despite offers of rides or a place to stay for the night from her fellow employees. On the way home her car collided with a truck. The accident left her with brain damage and a fractured neck and spine, rendering her unable to ever hold a job. Her husband sued the employer on her behalf.
The court found that the employer failed in his duty to provide a safe workplace and keep the employee from harm, which would have required the employer to maintain a supervised bar, monitor his employee's alcohol consumption, and take ‘actual' steps to prevent the intoxicated employee from driving her car home. The court stated that the employer “ought to have foreseen that, by maintaining an open and unsupervised bar, he would be incapable of monitoring the alcohol consumption of his employee, which led to the danger.” Given the employee's degree of intoxication, the employer needed to do more than offer to call her husband, offer all of his employees cab rides, or rely on the offers made by the employees who had not been drinking to drive their colleagues' home. The employer should have taken definite measures to protect the employee's safety by taking her keys and preventing her from getting to her car, and then either sending her home by cab at the company's expense or contacting her husband to pick her up. The court even suggested that the employer could have restrained her or called the police if necessary.
Other Cases
Other cases, have applied the principle that render employers responsible to provide a safe workplace and to protect employees from harm.
In Ontario, an employer was found partly responsible for failing to prevent an intoxicated employee from driving home, even though the employer clearly 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 and his continued employment be contingent upon him never being caught drinking on the job (the employee had signed a last chance agreement.)
The company also had a policy prohibiting drinking during office hours. However, the employee continued to secretly consume alcohol in his car, in the employer's parking lot, during office hours. One day, after secretly drinking on the job, the employee drove home, had something to eat, and then left home for a friend's house. The employee caused a major accident in which he seriously injured the other driver. The company was sued for damages. 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 he was known to consume alcohol, and also for failing to stop the employee from driving under the influence of alcohol. According to the court, the employer should have sent the employee home in a cab, or taken his car keys or confiscated his car, or placed him in the care of a union representative or other responsible person.
This case was later appealed, and the decision was overturned. The Court in overturning the first judgment in favour of the employer stated 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 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.
Also, there is a clear duty of care on an employer to provide a safe work environment for its employees but that duty does not extend 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. The Court was wrong to determine 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 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.
In British Columbia case, the court held that an employer had failed to safeguard an intoxicated employee from an unreasonable risk and was therefore 75% responsible for injuries suffered by the employee in a car crash. The employer had provided free beer to employees who were setting up a trade show. The employee in question drank beer throughout the day and after work continued his drinking at two pubs. While driving himself home, he fell asleep at the wheel and caused an accident that left him a paraplegic. The employee held the employer partly responsible and the court agreed, particularly, where the alcohol was provided free, in large quantities, without any supervision. In delivering its opinion, the court remarked that “it is not asking too much of an employer who provides alcohol to its employees, to monitor consumption.”
Conclusion
Recent legal decisions have broadened the scope of an employer's responsibility for monitoring employee behaviour, both within and outside of the workplace, where alcohol consumption is involved. Employers, who choose to make alcohol available to employees, must take steps to avoid foreseeable risk of injury that arises when intoxicated employees choose to drink and drive. If they fail to do so, the court will hold them to a highest standard of care. Employers, who host company sponsored-events where alcohol is served, can limit the legal risks and reduce potential liabilities by taking certain precautions. Click Here to find out more about the dos and don'ts of company sponsored-events.
A further note of caution is necessary. Although the cases mentioned above all involve actions by an employee under the influence of alcohol, the principle of employer liability is not restricted to just this form of questionable behaviour. It may also be extended to employees who commit criminal acts, or acts of violence or harassment in the workplace, among others. These other forms of questionable employee behaviour are discussed in other articles on the HRinfodesk website.
Related article: Employer Owed Duty of Care to Third Parties