The actions of employees regularly get employers into trouble. Whether it’s a disgruntled employee as they leave their workplace or a trainee starting out, there can be many issues that need to be accounted for by the employer. But what about criminal activity?
If your employees are conducting criminal activity during the course of employment, in some circumstances the employer can be found liable for the actions of their employee.
In the Course of Employment
An employer is liable only where the conduct is in the course of employment. Criminal acts by employees outside work hours and outside the workplace, are not considered within the course of employment normally. Where the conduct is outside the employment the employee is said to be on a “frolic” of their own, and so the employer cannot be held liable. For example, an employee on a work trip, has taken a significant detour and performs a criminal activity. This may be considered outside the normal course of employment.
Criminal Conduct in the course of Employment
An employer should not be found liable for the intentional and criminal conduct of their employee simply because they employ the person and the conduct occurred at the workplace. In the case of New South Wales v Lepore (2003) 212 CLR 511 (“Lepore”), 3 judges took a narrow view of vicarious liability. In Lepore, the Court explored the employer’s liability for the sexual abuse of student by teachers.
The narrow view states that the criminal conduct must be done in the intended performance of the employees’ job or done in the apparent execution of authority given to the employee by the employer. For example, excessive physically punishment of a student by a teacher may fall into this narrow view, but not sexual abuse.
Other judgments in Lepore took differing views. One view was that a teacher’s responsibility may involve an undertaking of personal protection so that sexual abuse may be sufficiently connected with their duties to give rise to vicarious liability. Another view was that it was relevant that the conduct occurred at the place of employment during work hours and in the case of vulnerable persons the risk might be regarded as so inherent to the work that the employer should reasonably be held to be vicariously liable.
Concurrent Liability
Just because the employer is held liable for the actions of their employees in certain circumstances, does not mean that the employee is absolved of their liability. In Lepore for example, the teachers were sued for the assaults as well as the employers.
It is more common for the plaintiff to sue to employer for damages. Of course, the employer could then sue the employee for the damages. However, most employers are barred from recovering damages from their employees except where it is serious and wilful misconduct by the employee. For example, criminal conduct by the employee.
Due to the complex nature of employer liability, employers should be careful to ensure that there are policies in place to prevent unlawful conduct in the workplace. However, in situations where the employer benefits from the conduct, the policies against it notwithstanding, they may still be found liable.
If you have further questions regarding employer liability, please contact Andrea Harrold at aharrold@franklaw.com.au.
This is not legal advice.
Photo by Lex Photography from Pexels
