SOCIAL MEDIA: VICARIOUS LIABILITY OF EMPLOYER

What is Vicarious Liability?

Vicarious liability is the deemed liability of (in this scenario) an employer for the wrongful conduct of its employee, even if the employer is not at fault.[1]

It terms of South African common law, an employer is vicariously liable for wrongful acts committed by an employee if these acts were committed within the course and scope of the employee’s employment. 

The doctrine of vicarious liability is based on the fact that an employee acts as an ‘instrument’ of the employer’.  As such, there is a potential risk of harm (to others) should the employee be negligent, inefficient or untrustworthy.[2]

In the ‘traditional’ vicarious liability cases, the common law prescribes three (3) requirements that need to be present for an employer to be held vicariously liable, being:

1. A master-servant or employer-employee relationship;
2. A wrongful act must have been committed by the employee; and
3. The employee must have committed the wrongful act whilst acting within the course and scope of his employment.

If, for example, a discriminatory or defamatory post is made by en employee during the course and scope of the employee’s employment (such as on the work computer, during work hours), the employer can be found vicariously liable.

These rigid requirements, however, made it simple for employers to escape liability as they could easily claim that they never authorised the employee to commit the wrongful act, or claim that the employee abandoned the business of the employer (committed the wrongful conduct outside the course and scope of his or her employment) and went on a ‘frolic’ of his own.

Such wrongful acts or omissions committed by an employee are referred to as ‘deviation’ or ‘detour cases’ of vicarious liability.[3]

Using the same example as above, an employer can claim that the wrongful conduct deviated because the employee utilised the employee’s own computer, outside of work hours to create a defamatory post on the employee’s personal Facebook page.

However, it must be noted that the employer can still be held liable for wrongful conduct of the employee committed outside the course and scope of employment, if there is a sufficiently close link between the business of the employer and the wrongful conduct of the employee.

A social media post that can be linked to an employer or its business can have the effect of the employer being held vicariously liable if there is a sufficiently close link between the online conduct and the business of the employer.

A sufficient link can be established if, for example, the employee was at his or her work premises when he or she posted the remark or comment, the employee utilised office equipment when making the post, and/or by virtue of the employee’s position the employee had access to information which is not in the public domain.

Jansen JA formulated the test to be applied in ‘deviation’ cases, in the case of Minister of Police v Rabie.[4]

The Judge applied both a subjective and objective test and held as follows:

“It seems clear that an act done by a servant [employee] solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant’s intention.  The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master [employer], the master may yet be liable. This is an objective test.” [5]

When applying the subjective test and the objective test, both questions must be answered in the affirmative.[6]

The Supreme Court of Appeal (“SCA”) reiterated the legal position in the case of Minister of Safety and Security v Moradu and Others,[7] in which it held that there was not a sufficiently close link between the conduct of Mr Duba and the business of the employer, and his conduct was a ‘radical deviation from the tasks incidental to his employment’.[8]

By adopting this stance, the SCA guarded the State from liability where it was too remote to allege.[9]

The SCA has also, in recent years, extended the scope of vicarious liability.

In the case of Stallion Security (Pty) Ltd v Van Staden,[10] the SCA considered the test for an employer’s vicarious liability.  In evaluating whether there was a sufficiently close link, the court held that one must establish whether the employer created the risk of the harm that eventuated.

Here, the Supreme Court of Appeal found that the employee committed the wrongful act wholly for his own purpose (a frolic of his own).

The question was whether there was a sufficiently close link between the employee’s act and the employer’s business, to make the employer vicariously liable.  The court held that by (merely) employing the employee, the employer had enabled him to enter the office, and so had created the risk that he might abuse this power (which he then did).

Accordingly, the SCA concluded that a sufficiently close link existed and vicarious liability was established.[11]

In the case of Otomewo v The Carphone Warehouse Ltd[12] (United Kingdom), two employees posted a status update on their manager’s Facebook page, without his permission or knowledge.  The post read “finally came out of the closet. I am gay and proud of it.”  The court found that this statement was posted in the course of those employees’ employment because the employees’ posted the update during working hours and it involved dealings between staff and a manager.  The employer was ultimately found vicariously liable for the conduct.

An employee’s conduct on social media can also have the effect of damaging the brand of the business, disclosing confidential information of the business and impacting the relationship of trust between the employer and the employee, which can constitute dismissible offences.

In contrast to the Otomewo case above, is the case of Sedick & Another and Krisray (Pty) Ltd.[13]  Despite the fact the employees’ social media posts were made outside of working hours and on their own personal devices, the employees were dismissed as the posts were in the public domain and were accessible to anyone, and brought the company’s name into disrepute.

Conclusion:

Employers should ensure that they have measures in place to protect themselves against acts by employees which may attract vicarious liability.

Clear policies on the use of social media should be in place.

Employees should be mindful of their conduct to ensure that they are not held liable for wrongful acts, and that they do not face possible dismissal.

Written by Candice Sage.

This article is for general information purposes and should not be used or relied on as legal or other professional advice. We do not accept liability for any errors or omissions nor for any loss or damage arising from reliance upon any information contained in this article. Please contact our offices on 031 202 3100 / ca****@ca************.za for specific and detailed advice on this topic.

For more information on the dangers of social media, download our article titled “Defamation and Social Media: Pause before you Publish” at https://calitzcrockart.co.za/2022/05/09/defamation-and-social-media-pause-before-you-publish%ef%bf%bc/

---

[1] https://www.abgross.co.za/vicarious-liability-and-employers/#:~:text=Vicarious%20liability%20is%20where%20someone,actions%20or%20omissions%20of%20another.

[2] Sibisi S, “Vicarious liability of employer for employee’s frolic: More clarity on detour cases” De Rebus (2016) (Nov) DR 52

[3] Ibid

[4] 1986 (1) SA 117 (A)

[5] Ibid at page 134

[6] K v Minister of Safety and Security 2005 (6) SA 419 (CC)

[7] 2016 (1) SACR 68 (SCA)

[8] At para 33.In casu, Inspector Duba, who was employed by the SAPS as a fingerprint investigator, drove to Mr Moradu and demanded to know the whereabouts of his wife (whom he was convinced was having an affair with Mr Moradu).  He then shot and killed Mr Moradu, using his private firearm. It was common cause that Duba had driven in an unmarked police vehicle, and dressed in civilian clothing and, therefore, it was unknown to the respondents that he was a police officer. The Court held that because Inspector Duba was employed in the fingerprint unit (which was not a division of the police to which the public will intuitively turn to for protection) and because the deceased had not known that Inspector Duba was a police officer (and placed no trust in him).

[9] Sibisi S at 2 above

[10] 2020 (1) SA 64 (SCA). In casu, the employer’s business was contracted to provide security services at a certain building. One evening, an employee entered the building, located the respondent’s husband, robbed him, forced him out of the building and into his car, and forced him to drive them off and beyond the premises. At a point the vehicle stopped and the employee shot and killed the husband. The respondent later sued the security company for loss of support.

[11] This approach was adopted and followed in the unreported case of Fujitsu Services Core (Pty) Ltd v Schenker South Africa (Pty) Ltd (2020) ZAG PJHC 111

[12] [2012] EqLR 724

[13] (2011) 32 ILJ 752 (CCMA). In casu, two employees, who were employed by a family owned enterprise, became disgruntled at more family members being hired. They took to Facebook to post defamatory comments on their Facebook walls, on the conduct of their employer. The CCMA upheld their dismissals.