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Article 22/2024

LabourEdge

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).

However, matters become a little bit more difficult when an employee commits a wrong entirely for his/her own purposes and the question arises as to whether or not the employer is vicariously liable.

What are some of the principles to be applied in determining whether or not an employer is vicariously liable under such deviant circumstances?

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  • There is a specific test to be applied to determine vicarious liability in such deviation matters and this entails, firstly, to determine whether the subjective intention of the perpetrator was to act solely for his/her own interests (this is a factual assessment) and, thereafter, it is to determine, objectively, whether the wrong committed is sufficiently connected to the business of the employer (this is a mix of factual assessment and application of law).
  • So, the vital question to determine is whether or not a close enough causal link exists between the business of an employer and the wrong committed by the employee and, in this regard, the following is of relevance:
    • the link is not established when the business of the employer provided the employee with a mere opportunity to commit the wrong
    • something more than a mere opportunity is required to establish the required causal link (Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 1695 (SCA)); Feldman (Pty) Ltd v Mall 1945 AD 733; Minister of Law and Order v Ngobo 1992 (4) SA 822 (A))
  • In applying the relevant principles, it is important to determine whether the employer enabled the employee to commit the wrong and whether or not this enablement created a risk that the employee might abuse his/her powers, thus leading to the unlawful conduct.
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)?