Employee negligence not a lost cause

Loss caused by employee carelessness could be recouped if caused by a failure to perform expected duties in a skilled position
By Rich Appiah
|Canadian Employment Law Today

Finding recompense for employee negligence

An employee who just doesn’t care makes a mistake and the employer is faced with a financial or other loss as a result. The employer can consider discipline or termination, but that doesn’t cover the damage done. Often, the employer can only try to absorb the loss and move on. However, in certain circumstances, the employer may be able to recoup something from the negligent employee.

Employees in unskilled jobs are not held liable for causing losses to their employers through negligence, but when the job requires specific skills and the employee is not properly using those skills due to negligent conduct, the courts can consider it a breach of the employment contract. Whether it’s a professional driver guilty of careless driving or an investment advisor making poor investments an employer might just be able to recoup losses suffered as a result of a skilled employee not doing the job properly.

When an unskilled employee causes losses to her employer through negligence, the employer is unlikely to recover any damages from that employee if her actions did not affect a third party to which the employer is vicariously liable. This proposition has been expressed in recent decisions of Canadian courts examining the implied terms of employment contracts to determine employees’ tort and contractual liability to employers.