The issue of the responsibility of an employee to individuals external to the employment relationship, such as customers of a retail business, suppliers, etc. was recently reviewed by the Ontario Court of Appeal.
The fundamental issue under consideration was whether a Starbucks employee could be sued personally for misadventures which took place in the normal course of her employment.
The basic allegation was that the server had poured scalding hot water on the hands of the customer, who happened to be a minor (not that the customer’s age is noteworthy to the case).
Why Sue the Barista ?
The decision to sue a specific employee is usually a tactical one on the part of the plaintiff. Generally, the company will also be sued for negligence as was the case in this instance.
Usually, the plaintiff is not intent on any actual financial recovery from the barista, but is looking for evidence to allow for a critical assessment of the claim by means of pre-trial discovery, since each defendant named in the lawsuit must submit to questioning under oath about the events in question.
Case in Law
This being said, there must be a tenable claim in law against the personal defendant to allow the case to proceed even to that stage. In this case, the barista moved to strike the claim as showing no claim in law. It was in this context that the legal issue of the liability of the employee for alleged negligent actions in the normal course of employment arose.
Court of Appeal Confirms the Law
The initial motions judge agreed with the defence and struck the claim. Success was short lived, however, as the Court of Appeal set aside this decision. This was not a startling decision as the law for many years has been that an employee can indeed be sued for such negligence in the course of normal employment duties.
In this case, the Court of Appeal went further, stating that even if the intent of the plaintiff was one of obtaining discovered evidence to promote the case against the company, such conduct is not to be challenged, so long as the personal defendant was ostensibly connected to the case by clearly having direct involvement with the factual context, as was the case here.
In the real world, an employer such as Starbucks would likely accept financial responsibility for the claim between the barista and itself. If this were otherwise, the employee would seek recovery from their employer for any claim successfully made against them.
In this case, the plaintiff also sued Starbucks for negligence, as noted. Another means of seeking recovery from such a company is to sue the employee barista and assert that the employer is responsible for the barista’s failings by means of the principle of “vicarious liability”. This requires a “close and material connection” between the job responsibility of the barista and the employer’s business, which in a case like this would surely follow. In such an instance, no employer negligence would need be proven, only that of the employee to which liability is then attached to the employer.
This is an important and complex issue and is worthy of a closer review.
Employee Negligence a Tricky Subject
Employers facing a negligence claim based on actions of their employees must be aware of the right of the plaintiff to sue an employee directly and use the evidence of this person in the expected claim against the employer itself. Employers must also be aware of the need for a good faith evidentiary basis of the claim and be prepared to challenge the claim where this is absent.
Employees facing such a claim would be wise to take independent legal advice even where the employer may appear to offer solace to their position. Such persons should not simply rely on a “don’t worry about it” statement from an employer. What if the company reneges on its commitment or becomes insolvent? What if the employer tries to “massage” the employee’s evidence prior to discovery or trial? What will happen if the employee is terminated because he or she refuses to follow the employer’s “suggestion” on his or her evidence? Obtaining independent advice will help an employee protect their position.
If you have questions about employer or employee liability, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
 Both the server and the manager were sued personally. For ease of reference, the article speaks to the server issue only. Both issues are identical.
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