A common question that attorneys are faced with from clients is: “When am I liable for the conduct of my employees?” This question often arises from one of two situations: First, where the employee has caused damage to a third-party or that person’s property. Or, second, where the employee has signed a contract or document on behalf of the employer. In this article we will deal with the first instance.
Both of these instances deal with a legal principle known as vicarious liability. The simple meaning of this principle is that an employer will be held responsible for the negligent acts of an employee as if the employer committed the act or omission.
In our law, an employer will be liable for the negligent or wrongful actions of its employees, if the act or omission was committed by the employee within their scope of employment.
An employee acts within the “scope of employment” when performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control. An employee’s act is not within the “scope of employment” when it occurs within an independent course of conduct not intended by the employee to serve any purpose of the employer.
The classic example arises in “employee car accident cases”. For instance, an employer sends an employee to collect goods from a supplier on the way back to the factory and the employee collides with another vehicle or pedestrian. The employer would be liable in this instance as the employee was engaged in the employer’s business when the accident occurred.
However, difficulty arises in the following situation: On the way back to the factory, the employee stops for a sandwich. The employee runs into a pedestrian while in the parking lot of the restaurant. Is the employer vicariously liable? It depends. The employer will argue that stopping for a sandwich does not serve its purposes. Pedestrian (and likely the employee as well) will argue that but for picking up the goods for the employer, the employee never would have had the opportunity to stop at the restaurant. In other words, the entire trip was for the employer’s benefit, even if the employee’s conduct was, momentarily, motivated by an intent to benefit the employee himself. Other factors might also come into play such as:
– Was the employee driving a company or private vehicle?
– Is the employee paid during lunch?
– How far off the approved route was the restaurant?
In short, employers are generally vicariously liable by default. Therefore, employers must take precautions to prevent damaging conduct in the first place. Training and clear policies are an employer’s best defense. However, employers are cautioned not to take extreme measures against employees when faced with legal action arising from the employee’s conduct, as it is important to bear in mind that, an employer cannot be held liable for an employee who was not acting wrongly in the first place.
Liability will be imposed upon an employer unless it can be shown that the employee was acting outside the scope of his employment at the time of the incident. This can be a difficult challenge. Employers should, therefore, take precautionary measures to avoid such incidents in the first place.
As we assist with many of these matter’s we have firsthand knowledge as to how many employers are unaware of the legal remedies available to them and would urge any employer in a similar situation to the above scenario to seek the advices of a competent attorney before the chance is lost.
Should you require any further information on this topic you are welcome to contact our offices on 011 897 1900 or
info@tuckers.co.za.
Article contributed by Stacey Bonser of Tuckers Inc.
