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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.
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?