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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.
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In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?