In the ever changing labour market and in a market that is driven by work being done faster, many employers have found themselves in a situation where employees are in many cases ill-managed. Employers are content with the situation as work is being done as it should be, not considering the risk they place upon themselves with staff that do not work under controlled conditions.
In this article the possible impact of Vicarious Liability will be examined. It is important to note that Vicarious Liability is in fact a highly controversial topic and by no means is this article meant to be a full examination of the concept of Vicarious Liability, but merely a look into the risk factor posed by it and how employers can actively manage their risks.
Vicarious Liability can be found in many pieces of legislation and in case law but it is commonly received out of English Law that form part of the Hybrid Legal System adopted in South Africa. For this article the focus point will be the view of section 113 of the Consumer Protection Act 68 of 2008 which states:
“(1) If an employee or agent of a person is liable in terms of this Act for anything done or omitted in the course of that person’s employment or activities on behalf of their principal, the employer or principal is jointly and severally liable with that person. (2) This section does not apply in respect of criminal liability”
It is clear from the above that in cases where an employee or any person acting on behalf of the employer (for this article the focus will remain on employees) acts negligently, or even wilfully, will mean that the employer remains liable. It is the understanding that the employee acts as an extension of the employer in the furtherance of the interest of the employer, and it is therefore the responsibility of the employer to ensure staff are adequately trained and supervised.
Liability cannot be restricted to only the Consumer Protection Act where commonly found cases include, but is not limited to:
- instances of poor quality work or services rendered;
- Product failures due to employees making mistakes with the manufacturing proses;
- Installation process not properly done leading to product failures;
- Incorrect advice given to clients leading to clients purchasing items that do not fulfill the purpose for which it was bought.
Another element that is to be considered are the liability imposed by the introduction of the Protection of Personal Information Act 4 of 2013 (POPI). This act places the responsibility on employers, as the “Responsible Party” as defined by POPI, to safeguard the personal information of employees, suppliers, clients and the like against unauthorised collected, use, sharing, retention and unauthorised processing.
To illustrate the point of an employee that can cause the employer to land in the proverbial “hot water” is where an employee in the duties are exposed to video footage for instance CCTV footage that are commonly used. The employee makes an unauthorised copy and places the collected footage on social media (Facebook, Twitter, YouTube etc.). This can cause the person whose personal information in the form of video footage which was used to keep the employer liable for damage to his/her reputation in a civil case.
Ways to address the risk outlined :
To address the problem above it is the duty of employer to ensure a sound framework of policies to be implemented. Should the employer want to manage its risk, it will need to prohibit certain actions. For misconduct steps to be taken the employer, in terms of Schedule 8 of the Labour Relations Act as amended will need to show:
- whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
- if a rule or standard was contravened, whether or not-
(i) The rule was a valid or reasonable rule or standard;
(ii) The employee was aware, or could reasonably be expected to have been aware, of the rule or standard;
(iii) The rule or standard has been consistently applied by the employer;
It has been established clearly in labour legislation that if there is no rule there is no misconduct. Employers cannot merely accept that employees know what they are doing is detrimental to the employers business or in contravention of any legislation. The responsibility rests on the employer to ensure the employees work within a rigid framework of policies regulating behaviour and setting the standard for work to be completed.
Should an employer be able to show that the employee has acted outside of the scope of his duties, the employer will have a reasonable defence if it can be shown that the employee acted outside of the framework set by company policies. Policies being made is only the starting point. Rules made should be applied as many employers find themselves with well drafted policies which has not been implemented and consistently applied. In a case where a policy implemented is not consistently applied the employer may find himself in a position where no action can be taken for misconduct even if the misconduct has been clearly defined in terms of policy.
Management plays a vital role in this regard to ensure employees are regularly kept within the restrictions placed by a body of rules and regulations.
About the author
Andries Lerm obtained his Honours degree in Industrial Relations in 2009 from the North West University’s Potchefstroom Campus.
Andries has since been working as a HR Manager for Dumela Group in Ellisras and thereafter was employed as HR Manager for Longtom Nissan before joining Seesa in 2012.
Andries boast 5 years of service with Seesa and worked in the Nelspruit branch as a Labour and Consumer Protection Legal Advisor before accepting the promotion to move to Cape Town in March 2017 as a Senior Legal Advisor specializing in Labour (Industrial Relations).
Senior Legal Advisor – Western Cape