TODAY'S WORK SPACE

JOSEPH MASANGO | Thursday November 26, 2009 00:00

Yes, this can easily arise at work, at a cost in terms of time, money and/or other resources...Ordinarily, an individual is responsible for the consequences of own actions or omissions.  However, within the law of delict there are certain instances where this is not always so.

This brings to the fore what is called vicarious liability.   Neethling, Potgieter and Visser (2001) describe vicarious liability as generally the strict liability of one person for the wrong doing of another.  According to them, the former is indirectly or vicariously held liable for the harm which the latter has brought upon another person.  While it exists in several contexts, I will attend to this rule in the context of the work space. 

One of the requirements for vicarious liability to arise is that the employer must be in an employment relationship with the person who brings harm upon 'the aggrieved'.  Such person must therefore not, for example, be an independent contractor.   Whether or not there is an employment relationship is a fact to be determined on a case-to-case basis. 

Citing the case of Harnischfeger Corporation v Appleton 1993 4 SA 479 (W) 487, Neethling et al add that the employee does not however cease to be delictually liable because of the employer's vicarious liability.  This is important for an employee to remember, so that s/he avoids possible danger.

Academics as well as foreign and local courts rely on certain tests to conclude whether or not a person alleging to be an employee of a particular employer is in fact one.  Some people have succeeded in their claims.  This is where the organizations involved would have applied their human resources practices in their dealings with these persons in a manner that is consistent with an employee-employer relationship.  I will not go into the specifics of these tests as that would divert us from the present focus.  In any event, the tests have been attended to in the past through articles from another contributor. 

The next requirement for vicarious liability to arise is that the employee must have committed the wrong in question.

The third requirement is that the employee must be acting within the scope of his/her employment at the time that he/she causes the harm to another.  This means that the employee must actually be performing duties in terms of the contract of employment. 

Courts have held that the employer is not always liable in each and every case when an employee commits a wrongful act believing that such act would advance the employer's interests. On the other hand, not every act which an employee commits in the course of employment to advance his own interests necessarily falls outside the course and scope of his/her employment.  The extent of the employee's diversion from same seems critical in determining whether or not liability should attach to the employer. Where the employee's deviation from the course of employment is not sufficiently material, then s/he cannot be said to have acted outside the scope of his/her employment.  The employer would thus be held vicariously liable for harm caused to a third party by the  employee's conduct.  See Viljoen v Smith 1997 (1) SA 309 (A).  However, if the employee substantially disengages himself/herself  from the scope of his/her employment, then the employer is likely not to be held liable for the harm. 

International trends show that there is no single shared basis for the existence of the rule under discussion.  Much has however been said, if regard is had to English, Canadian, Scottish, American, South African and other courts within Africa, and of course writings by law professors.  life examples of claims for vicarious  liability which have been brought in foreign and/or local courts.

Below are some real-life examples of situations in which vicarious liability has  been raised outside and/or within Botswana courts.

Example 1:  Counsel for the employer strenuously argued that his client (the company) could not be held liable for the actions of its employee.  The meat of  his arguments was that the employer had not authorized the employee to act as he did.  Not much turned on these submissions, as the Supreme Court of  that country held that vicarious liability can accrue despite lack of blame or fault  on the part of the employer.  It added that the test is satisfied '...even where the  act of the employee is specifically prohibited by the employer or the terms of the  employment contract, provided that the act in question is so connected with  the employer's business and authorised acts that it constitutes a mode, though  improper mode, of carrying out such business and acts...'  Omar Enterprises  (Pty) Ltd v. Fawcett Security Operations (Pty) Ltd 1992 4 SA 425 (ZS)
Example 2:  Without first securing a release from a job applicant to carry out a reference check, a prospective employer went on to get it.  It was gladly furnished by one Mr S, a supervisor in the organization where the job applicant previously worked.  Making no bones about his dislike of this particular former subordinate of his (personal differences), the supervisor systematically tore apart the job applicant's (i.e. his former subordinate's) good name and pride of place in society.  The supervisor went on to brag to others about the contents of the reference. This, and this alone, led to the applicant failing to get the job.  For some reason, the applicant got to know about the contents of the reference. 

The job applicant successfully sued the supervisor's employer for defamation, arising from the untruthful and misleading reference prepared by its supervisor.  With nothing much to bear out the employer's arguments, the court held the employer vicariously liable for the actions of its erring supervisor.

Example 3:  While driving a company vehicle, an employee diverted a little from  the official route, to drop something. He picked up a female who was an  unauthorised passenger in the company vehicle.  Unfortunately, while so  off- route, they were involved in an accident, and the employee perished in it.  The  lady passenger sought to hold the  company vicariously liable for her own injuries  from the accident. The court found the little diversion of route by the late  employee reasonable and therefore acceptable.  However, the court had  difficulties with the employee's act of carrying an unauthorised passenger.  It  held that this very act amounted to a wrongful and unauthorized mode of  performing his duties as an employee. 

The court further held that the act was  not so connected with the authorized act of driving to the extent of being taken as  a mode of driving.  The court decided that the employer was not vicariously liable for the acts of the deceased employee.

In the next article, the last on this topic, I will outline what perhaps are rather simple, but very practical and valuable lessons from which both an employer and  an employee stand to learn.  This should help both parties avoid being caught up and distracted by at times costly issues of vicarious liability, and leave them to  focus on  productivity and its enablers.This article does not purport to give a full and complete treatment of the subject of vicarious liability in the employer-employee context.

In the second article, to be featured next time, we will outlinee  lessons for learning for organizations, their line managers, human resources practitioners, other employees, and of course any other reader to whom the topic is of interest.

Masango is in the Doctor of Laws (LLD) programme.  He writes fully and completely in his personal capacity.  As such, his views do not represent, in any way whatsoever, those of the University or any other organization/s he may be associated with however and whenever.