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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)

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)?