Am I Responsible for the actions of my Employee and what is Vicarious Liability?
9 June 2017

– Summary

This article explains how employers can be held responsible for the actions of employees through the legal principle of Vicarious Liability.

Many people are aware that they could be responsible for the actions of their employees where those actions cause damage to someone else.  However, just how responsible an employer is and what the Courts have said is oftentimes not known.  We will deal with this responsibility in the article.

It is true that employers can be held responsible, it is called “vicarious liability”.

Vicarious Liability has been tested many times in South Africa Courts and is a substantially developed principle.  Below are the common law requirements for vicarious liability that have also been further developed by case law:

Requirements/Tests for Vicarious Liability

Employer-employee relationship

This requirement, also called the Master-servant relationship, seems pretty obvious; it stipulates that the wrongdoer must be an employee of the employer. 

However, the link is not always as simple as one might think.  For example, an independent contractor is not an “employee” and therefore there will not be liable for the actions of an independent contractor; however, if someone is responsible for ensuring that the work of an independent contractor is done correctly, case law indicates that that person could be considered an “employer” and the independent contractor an “employee”, thereby creating liable.

The courts will often utilise the “control test” to determine if someone can be considered an “employee” for the purposes of vicarious liability.  By way of example: if A has control over B‘s actions, then B may be considered the employee of A.

An employment contract is not a requirement for vicarious liability.

A wrongful or negligent action by employee

After establishing that someone is an “employee” of the employer, the next requirement is that the action of the employee must amount to a delict

To demonstrate a delict one must prove:- Conduct; Wrongfulness; Fault; Damage; and, Causation.

Committed the wrongful act while acting within the course and scope of employment

The final requirement is “scope of employment”. 

The employee must have been acting in the course and scope of his employment at the time that the incident occurred.

This can be a complicated requirement to satisfy.  There have been numerous cases that have considered this requirement.

The principle issue is that a strict application of this requirement means that an employee may escape liability in circumstances where the employee has deviated from the employer’s business and during this period has committed a delict.

The Court’s have responded with an addition to the requirement in these cases, namely:- Is there is a “sufficiently close connection” between the actions of the employee and the business of the employer?  The Courts would consider both subjective aspects (the employee’s intentions) and objective aspects (Is there a link between the employer’s business and the employee’s actions?) to determine if the connection is sufficient.

It is advisable, where possible, for employers to specify what actions during working hours are prohibited, as this can help avoid liability.  Bear in mind, it is not always possible to cover every eventuality.

Consequences

If vicarious liability is established, it does not absolve the employee of responsibility!

While the employer would be responsible to the third-party (that suffered the loss/damage), the employee may still be liable to the employer (i.e. the employer may recover some, or all, the damages suffered from the employee).

If the employee is still employed by the employer, the loss/damages may be recovered from the employee’s salary.  There are requirements that need to be followed to do this and restrictions on the rate of recovery.

Where the employee is no longer employed by the employer, and the employee refuses to cooperate, the employer would need to peruse its claim through the appropriate Court.

DISCLAIMER: THERE ARE MORE CONSIDERATIONS THAN WE CAN COVER IN THIS ARTICLE SO ONLY USE THIS INFORMATION AS A GUIDE.   THIS INFORMATION DOES NOT CONSTITUTE LEGAL ADVICE.  IT IS ALWAYS BEST TO DISCUSS YOUR SITUATION WITH AN ATTORNEY; CONTACT US AT 0861 88 88 35helpdesk@gcm-legal.com AND THROUGH THE CONTACT FORM ON THIS PAGE.

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