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)
