Employer Responsibility for Employee Conduct

Employer Responsibility for Employee Conduct in the Workplace

Bullying is a huge societal concern, but not only in the playground - also in the shop floor, photocopying room and within the office cubicles. Yes, that’s right, bullying and harassment in the workplace is a significant management problem, and one that the government will not tolerate. With that comes a question asked by many employers: Can an employer be held liable for the misconduct of their employee within the workplace? The short answer is yes…but only in certain circumstances. With the recent amendments to the Occupational Health and Safety Act, in Bill 168, the government has thrown down the gauntlet against harassment, bullying and violence in the workplace.

However, this won’t just affect employees; employers can and will be held responsible for the acts of their employees under certain circumstances. This includes harassment and bullying that is condoned or seemingly facilitated by the employer. If the employee’s wrongful conduct consists of acts authorized directly by the employer, or even indirectly - when the unauthorized wrongful conduct is so connected with the acts that the employer has authorized - then the employer could be held responsible for the acts of the employee.

There are two practical considerations for the imposition of accountability on employers for the acts of their employees: (1) fair compensation for the harm, and (2) deterrence to avoid the harm from happening again. Keep in mind that the overarching role of the law in this area is in its ability to both reflect society’s concerns to deter social evils, such as harassment and bullying, while not unduly interfering in necessary economic effectiveness.

What does this mean for employers? In short, in order to avoid paying a hefty price for the acts of employees, employers must comply with their statutory obligations, in light of Bill 168, to have a policy and program in place that sets out management guidelines and procedures with respect to harassment and violence in the workplace. Bill 186 sets out certain mandatory requirements. There must also be implementation and supervision of that program. Taken even further, employers should have a system in place that both fairly compensates the harmed employee and punishes the harming employee, to ensure a high level of deterrence.

If the above isn’t enough to convince management to comply with the requirements of Bill 168, keep in mind that the Ministry of Labour health and safety inspectors will enforce the new OHSA provisions for workplace violence and workplace harassment to determine if employers are complying with their new duties.

For further information on Bill 168/Preventing Workplace Violence And Workplace Harassment, see: http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_workplaceviolence.php

Andrea Griese
Employment Law