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Article 10/2022

On what basis will an employer be vicariously liable for the wrongs committed by an employee?

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The general principle is that an employer is vicariously liable for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).

However, the above general principle is not applicable in so-called deviation matters – where an employee commits a wrong entirely for its own purposes (Minister of Police v Rabie 1986 (1) SA 117 (A), so further developed in K v Minister of Safety and Security 2005 (6) SA 419 (CC)).

The test to determine vicarious liability in deviation matters can be summarised as follows:

  • step 1: determine whether the subjective intention of the perpetrator was to act solely for his/her own interest – this entails a factual assessment
  • step 2: if so, determine objectively whether the wrong committed is sufficiently connected to the business of the employer – this entails a mix of factual assessment and law
  • the real question to be answered within deviation matters is therefore whether a sufficiently close link exists between the wrong and the business of the employer and the following principles can be extracted from relevant case law:
  1. the link is not established when the business of the employer merely furnished the employee with an opportunity to commit the wrong;
  2. something more than a mere opportunity is required to establish the required causal link;
  3. the role to be played by the creation of risk of harm by the business of the employer is an important factor (Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 2695 (SCA); (2019) 30 SALLR 191 (SCA));
  4. another factor to be taken into account is whether the employer contractually undertook to protect the constitutional right to personal safety of the employees of the client whilst at the workplace and placed the employee in charge of this responsibility – in Stallion Security, the employer provided security services to its client and placed the employee who committed the harm in charge of this responsibility, allowing the employee to commit the relevant wrongs.  The aforesaid factors provided the required normative link between the employer’s business and the harm suffered by the victim, thereby establishing vicarious liability on the part of the employer.
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?