Employers may be held liable for unlawful behaviour of their employees

Sep 15, 2008


The price that an employer has to pay for being able to issue instructions to
employees and, generally, to control their work and the way in which it is done, is
that of vicarious liability for the unlawful conduct of their employees if this occurs
in the course and scope of the employee’s duties. For example, if an employee,
whose job it is to do deliveries, causes an accident through his own negligence
which results in damage or harm to the person in the other vehicle, the delivery
man’s employer is jointly and severally liable with him for the damage or harm
done. The driver alone will have to face possible criminal charges that flow from
the accident, but the employer will most probably be sued by the injured person
for things like medical expenses, loss of income and damage to the aggrieved
person’s vehicle. Joint and several liability means that if the delivery man pays,
the employer is absolved. If the employer pays, however, which will usually be
the case, it has a right of recourse against the delivery man to recover through
civil legal proceedings what the employer had to pay to the aggrieved person.

Vicarious liability may arise from the common law or legislation. Common law
vicarious liability only arises if the following conditions are met: the person who
caused the harm or damage must have been an employee at the relevant time;
s/he must have acted unlawfully; and s/he must have acted within the course and
scope of his / her duties. The latter is always a factual question, and it is
impossible to state for certain where the dividing line between acting in the
course and scope of duty or outside of it should be drawn.

Apart from the example mentioned, and provided the three conditions referred to
are met, vicarious liability can also arise, e.g., where an employee sexually
harasses or racially abuses a co-employee or customer; or assaults another; or
sends a libelous email or letter to someone. Perhaps one of the most well-known
of the cases where the principle of vicarious liability was applied is the matter of
Grobler v Naspers Bpk where the employer was held vicariously liable for sexual
harassment committed by one employee against another, despite the fact that
the harasser was dismissed when the matter came to light.

There is little an employer can do to prevent common law vicarious liability,
except to try and ensure that employees act lawfully at all times (e.g., through
good selection methods and training) and to take out sufficient indemnity
insurance cover.

The Employment Equity Act (‘EEA’) provides an example of a form of statutory
vicarious liability. Section 60 of that Act states that if it has been brought to an
employer’s attention that an employee has discriminated against any other
person, the employer must immediately take the necessary steps to eliminate the
alleged conduct after consulting interested parties. If it fails to do this, the
employer is liable as if it had committed the act of discrimination. However, if the
employer can prove that it had done ‘all that was reasonably practicable’ to
ensure that the discrimination would not occur, it will not be held liable. Liability
will then rest solely with the employee concerned. It should be borne in kind that
this provision covers all forms of discrimination prohibited by s 6 of the EEA. This
includes discrimination on the basis of gender (sexual harassment), race,
religious beliefs, sexual orientation and so on. Therefore, making fun of gay
people will also fall foul of the EEA, as will harassment of Muslims, Indian people,
Afrikaners, etc.

The case of Ntsabo v Real Security demonstrates just what a potentially serious
risk employers face. In that matter, the first to be heard under the EEA, Ms
Ntsabo resigned after repeated and serious sexual harassment by her immediate
superior and after her pleas for assistance from management had fallen on deaf
ears. She sued the employer for unfair constructive dismissal as well as for (she
had resigned because of discrimination, i.e., sexual harassment) and for vicarious
liability in terms of the EEA and won compensation on both counts.

This information is published for general information purposes and is not intended to constitute legal advice and should not be construed as such. Specialist legal advice should always be sought in relation to any particular situation. Maserumule will accept no responsibility for any actions taken or not taken on the basis of this publication. Consent must be obtained from Maserumule before the information provided herein is reproduced in any way. No person shall have any claim of any nature whatsoever arising out of, or in connection with, the information provided herein against Maserumule and/or any of its personnel.