BY lvanlsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address:
Where employees cause damage to property or persons in the course of their employment duties this can result in the employer being sued for damageson the principle of vicarious liability.
In the matter of Hirsch Appliance Specialists vs Shield Security Natal (Pty) Ltd security guards stole items from Hirsch Appliances while supposedly guarding its premises. Despite the fact that the security company
had not in any way been complicit in the theft it was found to be vicariously liable for the victim’s losses.
It does not always have to be the employer’s own employee who caused the damage. For example, in Midway Two Engineering and Construction Services Bpk vs Transnet Bpk (Contemporary Labour law Volume 12 No. 2 page 14) the employee, whiledriving a truck on Transnet property, caused damage to another person’s vehicle. Despite the fact that the driver was not a Transnet employee the Court found that Transnet was liable because it had the control of the employee at the time the damage was caused.
Due to the extremely onerous responsibility of employers for the actions of their employees employers are advised to:
- obtain insurance cover against vicarious liability.
- insert protective clauses in employment contracts
- exert careful control of all employees who might come in contact with third parties in the course of their duties or during working hours
- ensure that their rules are comprehensively codified and thoroughly communicated to all employees
- ensure that all employees are properly trained in the employer’s rules and in their duties and have the necessary licences and qualifications for the job
- discipline employees who break the rules
- make sure that managers know that they are responsible for overseeing compliance with the rules.
The above precautions are in any case necessary regardless of the issue of vicarious liability. All employers need, on a regular basis to have their policies, rules, employee qualifications, rule communication systems and performance appraisal procedures audited. This will not only reduce the risk of vicarious liability buy will also optimise employee compliance with the employer’s internal standards of work performance, safety and conduct.
Where employers do not have the resources on board to conduct such regular audits they cannot use this as an excuse for failing to their duty. The cost of using external experts will be far lower than the cost of law suits, payment of damages, lost customers, materials wastage and rework.
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