How far does employer liability for the actions of its employee extend?

22 February 2024 296
It is relatively well-known that employers can be held liable for the conduct of their employees. What is generally less well-understood is the scope of this liability. For example, can an employer be liable for the conduct of an employee whilst on sick leave? In this article, we take a look at an employer’s vicarious liability and how far this liability may extend.

Vicarious liability is a form of strict liability in terms of which one person may be held liable for the wrongful conduct of another without it being the fault of the former. The former is thus held indirectly or vicariously liable for the damage caused by the latter. 

For one person to be held vicariously liable for the conduct of another there has to be a particular relationship recognised by law that exists between the two persons at the time of the commission of the wrongful conduct. One such relationship, recognised by our law, is that of an employer and employee. This means that an employer can be liable for the conduct of an employee even though the employer did not perform the wrongful conduct. Importantly though, the employee must have been acting within the scope of his employment when committing the wrongful act for the employer to be held liable. 

An example: an employee delivering a package on his motorbike for his employer, drives recklessly fast and crashes into another car. In such a case, the employee was acting within the scope of employment (delivering the package for the employer) when he drove too fast (negligent), lost control and crashed into the other vehicle causing damage to it. 

One of the reasons, for holding the employer liable for the damages flowing from such a wrongful act of an employee, is the fact that the work entrusted to the employee by the employer creates certain risks of harm to third parties for which the employer should be held liable on the grounds of fairness and justice as against injured third parties.

In the matter of Stallion Security (Pty) Limited v Van Staden 2020 (1) SA 64 (SCA) the Supreme Court of Appeal considered an appeal in respect of which a loss of support claim had been brought by the wife of the deceased based on the vicarious liability of the employer whose employee had wrongfully caused the death of the deceased. The Court had to determine whether the wrongful act committed by the employee was nevertheless sufficiently closely linked to the business of the employer so that the employer was vicariously liable.

The employee was employed by Stallion Security (“Stallion”) as site manager at its head offices where the deceased was also employed. To execute his duties, Stallion provided the employee with a bypass or override key which allowed him access to the office area without the use of the biometric system which had been installed at the office and without record of such access. 

The employee fell into some financial difficulties and decided to undertake a robbery. He ‘hired’ a firearm for this purpose, since none of the personnel was issued with firearms. On the day of the robbery, the employee was on sick leave. He went to the head office where the deceased had worked and gained access to the office using the override key, demanding cash from the deceased at gunpoint. He coerced the deceased to make an electronic transfer in the amount of R35 000.00 and escorted the deceased out of the building to the vicinity of a shopping complex, where he shot and killed the deceased.  

On determining whether or not the murder of the deceased was sufficiently closely linked to Stallion’s enterprise the Supreme Court of Appeal held that Stallion furnished the employee with much more than a mere opportunity to commit the wrongs in question. It held that Stallion enabled the employee to enter and exit from the office area without detection or concern. The Court found that the employee had intimate knowledge of the layout and security services at the premises, the instruction to make unannounced visits to the premises at any time, the knowledge that the deceased would be working late and most importantly the possession of an override key to the office. The Court held that this special position created a material risk that the employee might abuse his powers and that this risk rendered the deceased vulnerable and led to the robbery and eventual murder. Since Stallion undertook the contractual duty to provide 24-hour access control services at the premises, there can be no doubt that the purpose of these services was to protect the staff and property from harm. Accordingly, Stallion was contractually burdened with the responsibility to protect the rights to personal safety of the deceased whilst at the workplace and Stallion placed the employee in charge of discharging this responsibility.

The Court dismissed the appeal, finding that a significant link existed between the business of Stallion and the death of the deceased and the employer was therefore vicariously liable for the conduct of its employee.

As can be seen from this case, the scope of vicarious liability can be expansive and employers must take extreme care of the risk of harm that their employment creates as it could create grounds for liability for damage caused by an employee, even when an employee is on leave.

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s). 
Related Expertise: Dispute Resolution