Yes, but under certain conditions. The law states that any person who orders another person to perform certain duties on his behalf is legally bound to repair harm suffered due to the servant’s faulty performance of those duties.

The law is strict with employers: once a victim proves that an employee committed a fault during the performance of his duties, the employer is presumed responsible for the incident and the resulting damages. This means an employer can be responsible even if he hasn’t done anything himself. But the responsibility of the employee doesn’t disappear just because the employer is held responsible.

For example, Étienne is a lifeguard at a city pool. During his shift, a child drowns without Étienne noticing. His employer can be sued by the child’s parents for the fault Étienne committed during the performance of his duties. The parents can also decide to sue Étienne at the same time.

An employer is presumed responsible for an employee’s fault and has to compensate the victim if the following is proved:

• The person who is at fault is an employee of the person being sued.

A person is another person’s employee when a relationship of subordination exists between the two people. This means that an employer exercises direct control, supervision, and direction over the acts of his employee.

There are certain indications that a relationship of subordination exists: the fact of giving orders, directions, and instructions on how a task should be performed. An obligation to report on the work performed to another person can also serve as proof of subordination.

• The employee committed a fault.

A fault is committed when one of the rules of conduct (according to custom, usage or the law) which we must all respect is broken. To determine whether an employee committed a fault, his conduct must be compared with that of a careful and diligent person performing the same duties in similar circumstances. For more information, consult the Infosheet entitled Civil Responsibility.

Example: to determine whether Étienne, the lifeguard, committed a fault, we must compare his conduct to that of a prudent and diligent lifeguard in similar circumstances. If a judge, after making such a comparison, rules that Étienne was not at fault because he did what he should have done, his employer cannot be held liable for damages suffered by the parents of the victim.

• This fault was committed while the employee was performing his duties.

An employee is performing his duties when he is acting on behalf and in the interests of the employer, when he is obeying his employer’s orders, or when he is carrying out tasks for which he was hired. An employer is also responsible for an employee in the following situations:

• if the employee performs his duties poorly and his negligence or lack of skill or caution causes damage
  
• if the employee performs a task other than that for which he was hired but for the benefit of his employer. For example, this is the case of an employee who, in good faith, takes an initiative that ends up causing harm.

Also, the employee’s objective must be taken into consideration when determining whether an employer is responsible. An employer will not be held responsible if the employee’s act was personal or not job related, even if the act took place at the workplace or during working hours.

Example: an employer would not be responsible where an employee took a company vehicle to run personal errands and injured someone.

To free himself of responsibility, an employer must prove one of the following:

• he is not the employer of the person who committed the fault
  
• the employee did not commit a fault
  
• the employee’s fault was committed outside of the performance of his duties
  
  When the employee did the wrongful act purely for his own personal reasons, his employer will not be responsible.
  
  
• the damages were due to the fault of the victim.
  
  An employer can completely free himself from responsibility if he can prove that the sole cause of the damages was the fault committed by the victim. The victim may also be found partially responsible. When this happens, the court may rule that the responsibilty should be shared between the victim, the employee (sometimes) and the employer (this lessens the contribution of the employer).
  
  
• the damages were due to the fault of a third party.
  
  An employer can free himself of responsibility if he can prove that the person who actually caused the damage was neither the victim nor his employee, but another person.
  
  
• the damages were due to a superior force.
  
  A superior force is an unpredictable and unstoppable event that causes harm or prevents a person from fulfilling their obligations. A superior force is often a natural disaster such as torrential rain, ice storms, tornadoes, etc.

Yes. The criminal or wrongful nature of an act does not take away the employer’s responsibility as long as the act occurred during and was related to the work for which an employee was hired.

Example: The employer can be held responsible where a dance club doorman or bouncer, responsible for ensuring the peace at a bar, assaults a client while ejecting him from the bar.

Yes. The existence of an employment contract between two people is not necessary. The court may consider a person to be an employee even if she is helping out of friendship or the desire to do a good deed, as long as she is under the orders of another person. The judge has to look at all of the facts of the case in order to draw a conclusion.

Yes. A victim can take legal action against the employee personally as well as his employer. Nothing stops the victim from combining the two recourses and suing both at the same time.