Article 24/2024

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

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  • In Hobongwana v Benteler SA (Pty) Ltd (2023) 44 ILJ 1125 (ECP); (2023) 34 SALLR 69 (ECP), the high court adopted the following approach in determining that the client was vicariously liable
    • the test to be applied to determine whether the client was negligent in dealing with the labour broker employee was that as set out in Kruger v Coetzee 1966 (2) SA 428 (A), namely,
      • determining whether or not a reasonable person in the position of the client (a) would have foreseen the reasonable possibility of its conduct injuring another person or property and causing patrimonial loss and (b) would have taken reasonable steps to guard against such occurrence; and
      • the client failed to take such steps
    • in applying the aforesaid test, the high court determined that the client had been negligent in allowing the labour broker employee to operate the required machine and also failed to take reasonable steps to preserve and protect the bodily integrity and physical well-being of such employee.
  • After applying the tests for both factual and legal causation in delictual claims, the high court determined that the client is vicariously liable for the injuries sustained by the employee of the labour broker.
  • Kindly note that there is another test for negligence as formulated by the supreme court of appeal in Mukheiber v Raath 1999 (3) SA 1065 (SCA).

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

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).

Up to now, the traditional approach in respect of collective agreements was that the civil courts do not have jurisdiction in respect of the interpretation or application (inclusive of breaches) of collective agreements.