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Article 6/2023

When will an employer be vicariously liable for the wrong committed by an employee, such as a senior employee sexually harassing a junior employee, and therefore exclude the application of
COIDA?

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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 or sphere of employment (Feldman v Mall 1945 AD 733).

However, where an employee commits a wrong entirely for his or her own purposes (e g sexually
harassing a junior employee), the general principle is not applicable (Minister of Police v Rabie 1986
(1) SA 117 (A); K v Minister of Safety and Security 2005 (6) SA 419 (CC).

In such a case where an employee commits a wrong entirely for his or her own purposes, the test to
determine vicarious liability of the employer entails a two-step approach, namely:

  • step 1, determining whether the subjective intention of the perpetrator was to act solely for his or
    her own interest – this is a factual assessment
  • step 2, if so, an objective determination is required whether the wrong committed is sufficiently
    connected to the business of the employer – this is a mix of factual assessment and the
    application of the law

The starting point is to realise that such required link is not established when the business of the
employer furnished the employee with the mere opportunity to submit the wrong. Something more is
required and whether or not same exists depends on the factual circumstances of each case and the
normative considerations so relevant to each case (Stallion Security (Pty) Ltd v Van Staden (2019) 30
SALLR 191 (SCA).

In Erasmus v Dr Beyers Naude Municipality and Jack (2021) 32 SALLR 6 (ECG), having considered
the fact that an employee who sexually harassed a junior employee acted solely for his own purpose
and such potential vicarious liability is to be established with reference to the deviant principles as set
out above, the court concluded the following:

  • the specific nature of the employment relationship presented an opportunity to the employee for
    the wrongful act to be committed, in the course of carrying out his duties
  • there is a duty on an employer to ensure that its employees, so placed in positions of trust, are
    capable of such trust
  • such trust forged a causal link between the superior employee and the wrongful act committed by
    him
  • consequently, the superior employee (in our example committing the sexual harassment) and the
    employer are jointly and severally liable for damages suffered by the employee (to the extent so
    proven by the employee)

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?