Are employees entitled to receive bribes or secret commissions without permission?
The answer is no.
In Soprema Inc. v. Martin, 2019 NBBR 72 (CanLII), the Court confirmed that employees cannot receive a secret commission from clients or take unauthorized advantages of their employment without being liable to their employer. Employers who discover that one of its employees has received secret commissions from suppliers have the right to sue that employee in order to recover the value of the benefit received by this employee.
With respect to secret commissions, the court confirmed the three elements of a cause of action in bribery against an employee:
- the person making the payment makes it to the agent or employee of the employer with whom he is dealing;
- it is made to that person knowing that person is acting as the agent of the employer with whom he is dealing; and
- that he fails to disclose to the employer with whom he is dealing that he has made that payment to the employee whom he knows to be the employer’s agent.
The Court also confirmed that employees may not take for themself or give to a third party the goods of their employer without authorization. In this case, the Court ordered the employee to reimburse the employer the value of all the goods taken.
It is therefore important for employees to seek authorization from their employer before receiving a benefit from a supplier or taking the goods of the employer, if they want to avoid liability towards their employer.
If you are involved in a situation where an employee has received unauthorized benefits from their employment, you will need the services of a lawyer who can assist you.