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Article 29/2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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  • The standard test applied to determine vicarious liability of an employer concerns a determination as to whether or not the wrong committed by the employee took place during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it – F v Minister of Safety and Security 2012 (1) SA 536 (CC).
  • But, where an employee commits the wrong deviating from the normal performance of his/her duties entirely for his/her own purpose, the standard test for vicarious liability is not applicable – Booysen v Minister of Safety and Security 2018 (6) SA 1 (CC).

What is the test to determine vicarious liability in deviation matters?

  • Step 1 entails a determination as to whether or not the subjective intention of the perpetrator was to act solely for his/her own interest – this is a factual assessment.
  • Step 2: if, indeed, the subjective intention of the perpetrator was to act solely for his/her own interest, then what needs to be determined, objectively, is whether or not the wrong committed is sufficiently connected to the business of the employer – this is a mixture of factual assessment and applying the law.

When would a sufficiently close link exist?

  • In dealing with the aforesaid step 2, the starting point is to realise that the link has not been established when the business of the employer furnished the employee with a mere opportunity to commit the wrong.
  • Something more than a mere opportunity is required to establish the requisite causal link.
  • This requirement of ‘something more’ depends on the specific factual circumstances and the normative considerations relevant to each case.
  • Lastly, what is also relevant is the role played in the creation of the risk of harm by the business of the employer.

Stallion Security (Pty) Ltd v Van Staden (2019) 40 ILJ 2695 (SCA); (2019) 30 SALLR 191 (SCA)

  • The supreme court of appeal indicated that the law regulating vicarious liability, as developed in Minister of Police v Rabie 1986 (1) SA 117 (A) should be further developed – what was recognised is that the creation of the risk of harm (risk liability) in an appropriate case constitutes a relevant consideration in giving rise to a sufficiently close link between the harm caused by the employee and the business of the employer.
  • In determining whether or not the employer has created a risk of harm so sufficiently linked to the harm caused by the employee and the business of the employer, the following are, inter alia, relevant factors:
    • whether or not the employer enabled the employee to commit wrong(s)
    • whether or not this enablement created a material risk that the employee might abuse his/her powers
    • whether or not the risk rendered a victim vulnerable
  • Another relevant factor in Stallion Security was that the employer contractually undertook to protect the constitutional rights to personal safety of the employees of the client, whilst at the workplace, and placed the employee, who executed the deviant behaviour, in charge of this responsibility – this, in casu, provided a significant normative link between the employer’s business and the harm suffered by the victim (and his/her dependents).
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)?