Where employees cause damage to property or persons their employer can be held liable by the victim. This is called the principle of vicarious liability and can result in the employer being sued for damages. Vicarious liability applies even if the employees were not actually engaging in work duties at the time the damage was caused. They need only to have caused the damage during their working hours.
The principle of vicarious liability could apply in cases of fraud, defamation, financial losses, theft, sexual harassment, damage to property or injury to persons. For example, in the case of K vs Minister of Safety and Security K three uniformed policemen raped K who then successfully sued the Minister of Safety and Security in the Constitutional Court.
The employer cannot avoid liability simply because it was not involved in the transgression or did not know it was happening. This is because the employer has the duty to employ responsible, capable employees and to exercise proper control over them. Due to these 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 workplace rules 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.
· on a regular basis, to have their policies, rules, employee qualifications, rule communication systems and performance appraisal procedures audited.
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.