Vicarious liability is a common-law doctrine whereby an employer is considered liable for the unlawful or delictual acts or omissions of an employee performed during the course and scope of their employment. The employer is held liable even though they did not, per se, engage in the wrongful conduct. The simple reason for this is that employees are the means by which an employer carries on its business.
What happens then, in the case where an employee abuses or deviates from the course and scope of their employment? Will their employer still be held liable?
Our courts have, in numerous cases, pointed out that an employer will not be liable if the employee had the subjective intention of promoting solely their own interests and that the employee, objectively, completely disassociated themselves from the affairs of their employer when performing the act. Therefore, if an employee completely disengages from the course and scope of their employment, the employer can escape liability.
The Constitutional Court has held, however, that an intentional deviation from duty does not automatically mean that an employer will not be liable. It also needs to be asked whether there is a sufficiently close connection between the employee’s conduct and the purposes and business of the employer. This is a question of law and fact, and as such, each case will thus be interpreted according to its circumstances. Therefore, If there is a sufficiently close link between the employee’s acts for their own interests and purposes and the business of their employer, the employer may yet be liable
This is why employers must ensure that the power given to their employees is sufficient for the operation of the business and are not unnecessarily far-reaching. If more-than-necessary powers are granted to an employee, there is a greater chance of abuse thereof and, therefore, a higher chance of vicarious liability being attributed to an employer.