Who's the boss?

They work on your premises but are employed by an agency. Legal responsibility for their actions depends on the offence
By Natalie C. MacDonald
|Canadian HR Reporter|Last Updated: 09/04/2003

In many cases, the increased use of staffing firms has transformed the traditional scenario of employer-employee relationship into a three-way affair.

This tripartite-partite relationship between the user organization, agency and temporary worker is increasingly attractive to organizations because it avoids obligations and liabilities associated with employees — or so some think. But, what happens when the temporary worker transforms into the schoolyard bully to harass, discriminate or injure an employee of the user organization? Which entity is liable? Situations like this can digress into a game of hot potato where one party throws the problem to the other and tries to avoid liability. Inevitably, one party faces vicarious liability.

Vicarious liability is the responsibility for the misconduct of another. In employment law, vicarious liability has been used to impose upon employers liability for the conduct of employees, which includes misconduct directed at other employees and third parties. Generally, it is recognized that there are two important principles underlying this concept: to provide a just remedy for the victim and to deter future harm.