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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month’s newsletter contains an article on the test to be applied by an arbitrator in deciding whether to interfere with the disciplinary sanction imposed by an employer. We also look at two new decisions dealing with vicarious liability and joining parties in an appointment dispute.

This public newsletter is a free edited version of the subscriber newsletter.


Is an employer vicariously liable for the wrongdoings of an employee?

A young woman went to an all-night shop at a petrol station to telephone her mother to ask her to come and fetch her. A police vehicle, occupied by three policemen, pulled into the petrol station. They offered her a lift home. She accepted, climbed into the car and sat in the back. Later, despite her resistance she was overpowered and forcibly raped by each of the policemen in turn. When they had finished they drove off leaving her to find her own way home. The policemen were sentenced to life imprisonment for rape and 10 years’ imprisonment for kidnapping.

The sole question in issue was whether the employer was vicariously liable for the conduct of the rapists. The court, in Kern v Minister of Safety and Security (2004 SCA) said the law was as follows:

An employer, whether a minister of State or otherwise, will be vicariously liable for the delict of an employee if the delict is committed by the employee in the course and scope of his or her employment. Where the employee deviates from the course and scope of employment, the test is ‘whether the deviation was of such a degree that it can be said that in doing what he or she did, the employee was still exercising the functions to which he or she was appointed or was still carrying out some instruction of his or her employer’. If the answer is yes, the employer will be liable no matter how badly, dishonestly or negligently those functions or instructions were being exercised by the employee.

The Supreme Court of Appeals said it had a duty to maintain a balance between imputing liability without fault (which runs counter to general legal principles) and the need to make amends to an injured person who might otherwise not be recompensed. In this case the court said that everything points to the three policemen being motivated by nothing more than self-gratification. "Acting in concert, they deviated from their functions and duties as policemen to such a degree that it cannot be said that in committing the crime of rape they were in any way exercising those functions or performing those duties." The employer was held not to be liable to pay compensation.

In an appointment and promotion dispute, is it necessary to join the successful candidate who has been awarded the post?

In a dispute arising from a promotion or appointment, the arbitration or litigation will involve the unsuccessful applicant for the job and the employer. But what about the rights of the successful applicant if the judge or arbitrator finds that the appointment was discriminatory or grossly unreasonable? Does the successful applicant have to be ‘joined’ in the dispute? This issue arose in PSA v Department of Justice & others [2004] 2 BLLR 118 (LAC).

Two employees, both white males serving in the office of the State Attorney, Cape Town, brought an unfair labour practice dispute over the appointment of a black male (Mr A) and an Indian female (Ms B) who were appointed to posts that had been advertised internally. A CCMA commissioner ruled that the decision not to promote the applicants constituted an unfair labour practice, and he ordered the respondent to grant them "protective promotion". On appeal, one of the issues raised by the employer was that the award should have been set aside because neither Mr A nor Ms B had been joined in the arbitration proceedings.

The Court noted that the appellant had contended that neither Mr A nor Ms B was suitable for the posts, and that the commissioner had based his ruling on a finding to that effect. This raised the question whether a person whose suitability for a post is called into question in CCMA proceedings, is entitled to be joined or at least heard before a ruling is made on that issue. The Court held that third parties with a direct and substantial interest in a dispute are entitled to be joined before a judgment is given which affects their interests. A finding that a person is unsuitable for the post to which he or she was appointed directly affects that person. It is no defence to a plea of non-joinder to say that the party knew of the proceedings, but failed to intervene.

A clear advantage to the employer in joinder is that had Mr A and Ms B been parties to the arbitration proceedings, they would have been bound by the award, and the employer could have used it as a basis for removing them from the posts. However, they were not bound by the award. That being the case, Mr A or Ms B could have sought an order declaring them suitable for the posts. Had such an order been granted, the employer would have been faced with conflicting rulings, both binding on it, creating an untenable situation.

The Court held that by making a damaging finding against them without affording them a hearing, the commissioner had committed a gross irregularity which vitiated the entire proceedings. The award was accordingly set aside.


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Bruce Robertson
November 2004
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