Employment relationships are complex and employers are responsible for the actions of their employees during the course of employment. Vicarious liability is a legal principle that holds employers responsible for the wrongful actions of their employees. In South Africa, vicarious liability is an important concept in employment law and employers need to be aware of their legal responsibilities. In this article, we will provide a comprehensive guide to vicarious liability in the employment law context in South Africa.

Vicarious Liability

Vicarious liability is a legal principle that holds employers responsible for the wrongful actions of their employees. This means that if an employee commits a wrongful act while acting within the course and scope of their employment, the employer can be held liable for the damages caused by the employee's actions. The employee remains responsible for their actions, but the employer shares the responsibility for the consequences of those actions.

What Are the Requirements For Vicarious Liability?

In South Africa, employers are held vicariously liable for the acts of their employees if it can be proved that said acts occurred within the course and scope of employment. There are three criteria that need to be established before one can hold an employer vicariously liable for the actions of the employee.

(1) Employment Relationship

It must be shown that the employee was in fact employed by the employer in question.

In order to determine if such relationship exists the courts have applied the “dominant impression” test. This test is employed when it is unclear if there is in fact an employment relationship between the parties in question. In applying the “dominant impression” test the court will have regard to the realities of the employment relationship, rather than simply looking at the nature of the contractual relationship. Under the dominant impression test, a person will be considered to be an employee if they are subject to the control of the employer. In order to determine if the employer is exercising control over said person one will have to ask if the employer has control over how the person completes his/her duties, does the employer control the hours of the work and where the person is to work. The test further requires one to consider if the person is subject to the supervision of the employer.

The definition of ‘employee’ in s 213 of the Labour Relations Act reads as follows:

“’employee’ means-

(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) Any other person who in any manner assist in carrying on or conducting the business of an employer, and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’.”

(2) Has the Employee Committed a Delict?

For a employee to have committed a delict, it must be shown that the employee, intentionally or negligently committed a wrongful act which caused a third party to suffer damages.

(3) Course and Scope of Employment

The general rule is that an employer will be held vicariously liable for the wrongful acts of an employee if the act in question was committed within the course and scope of the employee's employment or whilst the employee was engaged in any act subsidiary to it.

It is generally accepted that if an employer committed an illegal act, such an illegal act is not considered to be within the course and scope of the employees employment. If an employee is acting outside of the course and scope of his/her employment, the employer may still be held liable if it can be shown that there was a close link between the business of the employer and the act of the employee.

How Does Vicarious Liability Apply in Employment Law?

In the employment law context, vicarious liability applies when an employee commits a wrongful act, such as discrimination or harassment, while acting within the scope of their employment. The employer can be held liable for the damages caused by the employee's actions, even if the employer did not know about the employee's wrongful conduct.

Preventing Vicarious Liability

Employers can take steps to prevent vicarious liability by implementing policies and procedures to prevent wrongful conduct by employees. This may include providing training (e.g. on discrimination and harassment), implementing reporting procedures for complaints and taking disciplinary action against employees who engage in wrongful conduct.

Conclusion

Vicarious liability is an important concept in employment law in South Africa, and employers need to be aware of their legal responsibilities. By understanding how vicarious liability applies in the employment law context, employers can take steps to prevent wrongful conduct by employees and possibly defend against claims of vicarious liability. Implementing policies and procedures to prevent wrongful conduct and providing training to employees can help reduce the risk of vicarious liability and promote a safe and respectful workplace.

Our Employment Lawyers can assist parties who are seeking to hold an employer liable for the wrongdoing of their employees. Our Labour Law Attorneys are also able to assist employers who are seeking to defend such delictual claims brought against their companies.