Employers could be liable for contractors or employees actions in South Africa

Health and Safety liability

Vicarious liability may not be a common term, but it is a legal term that is used in describing a situation where the law holds a person, or an employer, liable for the wrongful act or omission of another, regardless of whether it was that person’s fault.

Vicarious liability is also known as strict liability and it is imperative to know and realize that employers could be liable for contractors or employees’ actions in South Africa, given the right circumstances.

One way in which to clearly explain this is by using the following example:

While on duty, a vehicle driver collides with another vehicle and the other driver is grievously injured. The accident was the fault of the driver and thus his employer is held liable, which serves as the principle of vicarious liability.

What can, therefore, be deduced from vicarious liability is that it only applies where there is a certain relationship, such as:

• Employer and employee.
• Motor vehicle owner and motor vehicle driver.
• Principle and agent.

Vicarious liability has a set of requirements for it to be applicable, these are:

• That the wrongdoer is the employer’s employee, and
• The employee’s conduct amounts to a wrongful or negligent act or omission.

Therefore, the employee must be acting in both the course and the scope of their employment at the time that the act is committed. The employer cannot be held responsible for acts of their employees who deviate from the duties for which they have been employed.

What happens when independent contractors are concerned?

It is imperative to consider  who will be responsible for the actions of independent contractors. Whether it will be the contractor themselves, or the employer who appoints them.

An independent contractor is an individual who has their own business and is free to provide services to several employers or clients. They do not depend on the employer’s business to make a living and they are not paid to report for work every day but, instead, for the results achieved for the employer.

Independent contractors are not controlled or supervised by the employer in relation to their working hours or their methodology of work. Therefore, the employer is not vicariously liable for actions of independent contractors.

Labour Brokers

The employer may be held responsible for the wrongdoing of a person who works in their business who has been sourced by a labour broker, regardless of whether the employer appointed the individual directly, or not.

The factors which are relevant in determining the liability of the employer will depend on the following:

• The employee was under the control of the employer at the time that the wrongdoing occurred.
• The employee reports directly to the employer, or
• The employee was carrying out tasks which are identical to those carried out by the employer’s own employees.

Course and scope of employment

One thing that employers must consider involves when their employee is acting during the scope of their employment. The course and the scope of employment will pertain to the time, place, and conditions under which the injury on duty or wrongdoing occurs.

Should an employee be responsible for, or cause, an injury to another or the property of another, it will be necessary to ascertain whether the employee was acting within the course of their employment.

The employer has a legal responsibility for damages should the employee have caused them while performing their work. Should the driver for a transportation firm be involved in an accident with a pedestrian, for instance, the pedestrian is within their right to sue both the driver as well as the firm.

For this reason, an employer may be held liable for a civil wrongdoing other than breach of contract, which was committed by an employee who was operating within the scope of their employment.

The employer will therefore not be held vicariously responsible should the employee not have been furthering the interest of the employer or they acted in contravention of an instruction given by the employer.

Vicarious liability can only be applied if either, or both beforementioned requirements have been met, either that the wrongdoer is an employee and/or the conduct of the employee amounts to a wrongful or negligent act or omission.

How can SafetyWallet help Employers and Contractors’ Health and Safety Compliance?

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