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Vicarious liability - An employer’s worst nightmare

By Neil Coetzer, Partner and Courtney Wingfield, Candidate Attorney, Cowan-Harper-Madikizela Attorneys


The concept of vicarious liability remains an elusive concept and is not clearly understood my many employers (and lawyers for that matter!). The Courts have over the years developed the concept substantially by extending which acts give rise to such liability. It is not always clear whether an act by an employee is done within the course and scope of employment and this remains the biggest challenge to pursuing or defending such a claim.


Recently the Supreme Court of Appeal was required to determine whether an employer could be held to be liable for an act of murder perpetrated by its employee in Stallion Security v Van Staden (526/2018) [2019] ZASCA 127 (27 September 2019).


The appellant (“Stallion”), a security company, provided security services to Bidvest Panalpina Logistics (Pty) Ltd (“Bidvest”) at two of its warehouses and head office. Stallion primarily regulated access to the premises. While the security guards had access to the premises, they were not authorised to access to offices. The site manager was provided with an override key which granted them unrestricted access to any part of the premises, including the offices of Bidvest.


Mr Ronald Khumalo was initially employed by Stallion as a security guard at Bidvest’s premises. After a short period, Mr Khumalo was promoted to site manager after a recommendation by Bidvest, who were impressed by Mr Khumalo’s performance. Shortly after his promotion Mr Khumalo became tardy, unkempt and ill. It later transpired that he had encountered financial difficulties and borrowed money from ‘the wrong people’. As he was unable to repay his debts, the persons from whom he had borrowed the money ‘started hurting him’. As a consequence of this he was placed on sick leave by Stallion and relieved of his duties at Bidvest.


Mr Khumalo became desperate and knew that Bidvest kept a petty cash box in its head office and that Bidvest’s financial manager, Mr van Staden, often worked late. During October 2014 Mr Khumalo hired a firearm from a fellow employee and decided that he would wait until the cover of darkness before engaging in a robbery of Bidvest’s offices. Two days later he arrived at Bidvest’s offices at midday and observed that Mr van Staden was present. He then waited until 18h00 to access the office by using the override key.


Mr Khumalo approached Mr van Staden and held him at gunpoint, demanding access to the petty cash box. Mr van Staden indicated that he could not access the petty cash box and instead offered Mr Khumalo all of the money in his personal bank account, a sum of R35 000.00. Mr Khumalo then demanded that Mr van Staden make an EFT immediately which Mr van Staden did.


After the EFT was effected, Mr Khumalo escorted Mr van Staden out of the building and demanded that he drive the two of them to the Eastgate Shopping Centre nearby. It then dawned on Mr Khumalo that Mr van Staden would likely report him to the police and, faced with this realisation, he then shot and killed Mr van Staden.


Mrs van Staden, the deceased’s wife, instituted a claim for some R1.6 million for loss of support. Her claim was granted in the High Court and Stallion subsequently appealed to the Supreme Court of Appeal (“SCA”).


The SCA found that South Africa’s law on vicarious liability should be developed to include situations where an employee has contributed to the creation of the risk of harm and that this may constitute a relevant consideration in establishing a link between the harm caused and the business of the employer.


The Court found that even though Mr Khumalo was on sick leave during the time that the harm was caused and that Stallion did not provide him with a firearm, Stallion would nevertheless be liable in the circumstances. The Court found that Mr Khumalo was able to gain access to Mr Van Staden’s office by way of the override key and because, as the site manager, he was required to make unannounced visits to the premises. As a consequence of this, his presence at Bidvest’s offices, even after 18h00, did not raise any suspicion and permitted him unrestricted access to Bidvest, its employees and their property.


Further, his crime was also enabled by his intricate knowledge of Bidvest’s business. These facts created the material risk that Mr Khumalo could abuse his powers, which he did. The SCA also found that Stallion was contracted to provide security services and to protect the constitutional rights of Bidvest and Mr van Staden. While Stallion had entrusted that function to Mr Khumalo, he had failed to exercise this duty.


This judgment has the potential to expose employers to significant risk for in respect of the acts of their employees. It is difficult to imagine, in these circumstances, how Stallion could have intervened to avert the actions of Mr Khumalo and to avoid being held vicariously liable for his acts. Employers will need to reconsider the way in which they allow their employees to perform their duties and which duties they entrust to certain employees. A failure to do so may result in them being held vicariously liable.


For more information please contact Courtney Wingfield or Neil Coetzer at +27 (0)11 048 3000, or 









Can employers discipline employees for conduct occurring outside of working hours?

BY Siphamandla Dube, Senior Associate, Employment, ENSafrica


An increase in global digitisation has resulted in the extensive use of social media. This has undoubtedly changed the way in which we communicate personally and professionally. In the inescapable, ever-changing and rapid advancement of social media, many employees express their views in the public domain for public consumption. As a result, employees often include the famous disclaimer “views expressed are my own, they do not represent those of my employer” on their social media pages.


But can employers discipline employees when they post unfavourable comments regarding their employer, or comments that may adversely impact on their employer, on their own social media accounts, with their own data and devices and, more especially, when this conduct occurs outside the workplace and outside working hours? Recently, in Edcon Limited v Cantamessa and Others, the Labour Court had the opportunity to consider these issues in the context of a “racial monkey slur” posted on Facebook.


The brief facts in this case were that during December 2015, the then President Jacob Zuma appointed Mr Des van Rooyen as Finance Minister, in the place of Mr Nhlanhla Nene. Many South Africans were upset about President Zuma’s cabinet reshuffle. On 20 December 2015, while on annual leave, the employee posted the following message on her Facebook account:


“Watching Carte Blanch and listening to these f****** stupid monkeys running our country and how everyone makes excuses for that stupid man we have to call a president... President my f****** ass!! #zumamustfall This makes me crazy ass mad."


On 12 January 2016, Edcon received an email from a Ms Amanda Sibeko, in which she complained about the employee’s Facebook post. She wrote:


“I would like to bring to your attention the attached post by an Edcon employee on social media. In light of recent occurrences [sic] in our country I felt it my duty to act on Ms Cantamessa’s post. Her bio indicates that she works for Edcon and therefore associated her social media with the organisation… Please advise [sic] on what transpires from this email.”  


On 22 January 2016, the Sowetan Newspaper published an article about the employee’s post entitled "Racist Monkey slur strikes again". Several Twitter users who reacted to the employee’s Facebook post demanded answers from Edcon and, in some instances, threatened not to do business with Edcon. As a consequence of the above, Edcon suspended the employee and subjected her to a disciplinary enquiry. The employee was charged with misconduct described as:


"On the 20th of December 2015, you made an inappropriate racial comment on Facebook. Such action placed the Company's reputation at risk and has breached the employment trust relationship".


It was common cause throughout the dismissal dispute that the employee had posted the comment on her Facebook page, while she was on annual leave, using her own computer and data. The comment she made had nothing to do with her duties as an employee of Edcon. It was also common cause that her Facebook page indicated that she was employed by Edcon.


The disciplinary hearing proceeded and, upon making a finding of guilt, the chairperson summarily dismissed the employee. The employee referred an unfair dismissal dispute to the CCMA. On 28 December 2016, the commissioner issued his arbitration award in which he found the employee’s dismissal to have been substantively unfair. In support of his finding, the commissioner held, amongst other things, that the employee’s post did not pertain to her work or to Edcon, the employee was on annual leave and not at work when she posted on her Facebook account. The commissioner further held that Edcon had failed to show that it suffered any financial loss as a consequence of the employee’s Facebook post.


Edcon took the award on review to the Labour Court. The Labour Court held that the general rule is that an employer has no jurisdiction or competency to discipline an employee for conduct that is not work related and which occurs after working hours and away from the workplace. However, relying on the Labour Appeal Court judgment of Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another, the court indicated that the fact that the misconduct complained of occurred away from the workplace and outside working hours does not necessarily preclude the employer from disciplining its employee, provided that there is a link between the employee’s conduct and the employer’s business. The test for determining whether there was such a link was described as follows in the Hoechst decision:


“[a]t the end of the enquiry what would have to be determined is if the employee’s misconduct had the effect of destroying or seriously damaging the relationship of employer and employee between the parties”.


The court held that, in principle, Edcon could exercise discipline over the employee, provided it established the necessary connection between the misconduct and its business. It noted that the comments made by the employee did not, in and of themselves, relate to the employer-employee relationship. The only source for the connection was that, in her Facebook page, she indicated that she worked for Edcon. The court found that there was a connection between the employee’s conduct and the relationship she had with her employer. This was stated as follows:


“[16] The only source for the connection lies in that her Facebook page indicated that she worked for Edcon. However, Edcon is a merchandiser of its various products in a competitive industry. Ms Cantamessa as a Specialist Buyer played a pivotal role in the acquisition of such products, including ladies trending styles and fashion for Edcon. The success of its business depends also largely on how it markets itself to the general public. Therefore, having a good name is an essential asset or quality of Edcon to the general public. In as much as Buyers of Edcon can and often remain anonymous to the general public, once their identities are exposed to the general public, it must only be in a positive and not negative environment or circumstance, otherwise such disclosure imposes a risk that the name of Edcon may be brought into disrepute. Therein lay the connection between the conduct of Ms Cantamessa with the relationship she had with her employer. She had to avoid being a controversial employee in the public eyes where she could be associated with Edcon.”


The court dismissed the employee’s defence that the use of the monkey slur was a reference to the government and not targeted at specific individuals. The court found that the usage of the monkey slur was in the circumstances a racial slur directed at Black persons in government, running the country. The court concluded that this was a highly offensive remark in respect of which Edcon was entitled to take disciplinary measures, lest its name be put into disrepute for tolerating racism. The court concluded that the employee’s conduct exposed Edcon to a risk of reputational damage. The fact that no actual financial loss was proved by Edcon was not a valid defence. In any event, the charge sheet did not allege that damage was actually suffered. On this basis, the court therefore reviewed and set aside the award and found that her dismissal was fair.


This judgment highlights that the disciplinary reach of an employer extends to conduct outside of working hours and off the employer’s premises and once again confirms the unacceptable nature of racist conduct or comments, irrespective of whether the conduct or comment took place, or was made, in or outside of the workplace. It matters not that the unacceptable content which is posted on an employee’s social media is transmitted through a privately owned device.


For more information kindly contact Siphamandla Dube at 

Article published with the kind courtesy of ENSafrica for more information please visit www.ensafrica.com








Where a failure to conduct job grading deprives an employee of benefits it may amount to an unfair labour practice

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate; and Chelsea Roux, Candidate Attorney, Werksmans Attorneys



Whether the failure to implement a performance management system in relation to job grading and job evaluation systems amounts to an unfair labour practice where the effect of such failure deprived employees of benefits.



Where the failure of an employer to evaluate employees on performance based contracts deprives such employees of salary increases, an unfair labour practice may have been committed.



In the matter of National Tertiary Education Union obo Mahomana and Another v University of Fort Hare[2019] 10 BALR 1102 (CCMA) the Commission for Conciliation, Mediation and Arbitration (“CCMA“) dealt with the above issue. The facts of the matter are briefly as follows:


The Applicants, Bulelani Mahomana and Charles Hanyani, were employed as sport officers at the University of Fort Hare (“the Respondent“). They were initially employed on a one year fixed term contract which expired on 1 January 2016. The Applicants referred an unfair labour practice to the CCMA which was settled on the following terms:


  • The Respondent agreed to employ the Applicants on a permanent basis with effect of 1 September 2016 and retrospectively from 1 January 2016;

  • The Applicants’ one year contract would convert to a five year performance based contract with effect of 1 September 2016 to 31 December 2020; and

  • The Applicants would receive back pay from 1 January 2016 on 22 September 2016.


The Respondent did not comply fully with the terms of this settlement agreement by not upgrading and evaluating the Applicants’ job performance for a period of three years. This occurred even though there was a performance management system in terms in respect of which the Applicants were expected to sign a performance agreement. The Applicant’s referred the matter to the CCMA.


At arbitration, the Applicants asked that their jobs be evaluated and upgraded with effect from the date of their appointments. They alleged that the Respondent had violated its own policy relating to benefits. The Applicants sought six months’ compensation if it was found that the Respondent indeed committed an unfair labour practice.


In support of their case, the Applicants stated that they were absorbed by the Respondent in 2016 and employed as sports coaches. The Applicants had indicated to management that they were unhappy about their employment conditions. Nothing came of this and after exhausting all internal options, they referred the dispute to the CCMA.


Evidence, in the form of correspondences from management, was presented which proved that the Respondent committed to evaluating their job performance in accordance with the employment contracts. The Respondent had failed to do so. The Applicants unsuccessfully lodged grievance letters with management but did not receive performance appraisals for three years.


The Respondent argued that the Applicants did not follow the correct reporting lines in order to have their jobs evaluated. It was confirmed that the Applicants’ job grading and evaluation had not been completed as the Respondent was awaiting documentation from the human resources department. With regard to the grievances submitted by the Applicants, it was argued that this was not finalised due to incorrect reporting lines.


Commissioner’s evaluation

Section 186(2)(a) of the LRA defines an ‘unfair labour practice’ as “any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissal for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.” (Emphasis added)


The Commissioner held that it was common cause that the Applicants’ contracts of employment were performance based contracts and that they had not been graded or evaluated. This omission deprived the Applicants of a salary increase and the further benefits enjoyed by other employees for three years.


It was held that there may be many forms of unfair conduct by an employer, but section 186(2) of the LRA confines itself to specific acts. An employee thus bears the onus of proving that the employer’s conduct falls within the ambit of section 186(2) of the LRA.


The Commissioner found that the Applicants’ recourse lay in their employment contracts. The Commissioner found that the Respondent committed an unfair labour practice when it failed to upgrade and evaluate the performance of the Applicants. This deprived them of benefits and salary increases for a period of three years and was accordingly unfair.


The Commissioner awarded the Applicants six months’ remuneration and ordered that the Respondent upgrade and evaluate the Applicants’ job performances in terms of their employment contracts and the evaluation policy within 30 days of the date of the award.


Importance of the case

Where an employer fails to grade an employees post, in circumstances where there is a requirement to do so, and such employees are deprived of benefits as a result thereof, this could result in an unfair labour practice having been committed.


For more information, please contact Jacques Van Wyk at  or  Andre van Heerden at 

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com










No rest for the wicked Social Media Policy

By Nicholas Preston, Director and Lerato Malope, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr


Our courts have often dealt with employees operating under the misconception that their social network sites are personal, private and detached from their employment. Employees may often feel secure under the guise offered by the divide between work and personal life, particularly during the festive “leave” season where employees spend less time in their work environment. However, dismissals on account of social media misconduct are on the rise.


In recent judgment EDCON Limited v Cantamessa and Others, the Labour Court found that a racist comment made by an employee while on leave constituted a dismissible offence. The Labour Court crystallised the principle that it is within an employer’s right to discipline its employee for misconduct which occurred outside the workplace, provided a connection can be established between the employees’ misconduct and the employer’s business.


In this case, the employee had identified herself as a specialist buyer for EDCON on her personal social media account wherein she posted comments, referring to former president Jacob Zuma, to the effect of:


“…and listening to these stupid [email protected]!k1ng monkeys running our country and how everyone makes excuses for that stupid man we have to call a president...”


The employee posted this comment following a cabinet reshuffle during December 2015. The comments made by the employee gained traction on social media, which resulted in a formal complaint being laid against the employee by a customer of the employer.


The Labour Court considered the established principle that employers are precluded from taking disciplinary action against employees for misconduct perpetrated outside of the workplace furthermore outside of their ordinary hours of work. The court however drew a distinction, in this particular context, as the conduct of the employee had ultimately caught the attention of the greater public which cast a negative light on the reputation of the employer against its customer base which was predominantly black people.


The Labour Court ultimately found that while the comment was made on the employee’s private account, the comment did gain attention in the public domain albeit to a limited extent. However, within that limited range, the employer was associated with the employees’ conduct which opened up the employer to reputational damage.


It is important to note that an employee need not identify themselves as an employee of a certain company in order for them to fall foul of the employers disciplinary policies and code of conduct. In Dewoonarain v Prestige Car Sales (Pty) Ltd t/a Hyundai Ladysmith (2014) [MIBC] the employee made racist remarks against its employer and colleagues, without mentioning the employers name. The employee argued that the employer ought to prove how the employee’s comments could bring the company’s name is into disrepute, where its name was not mentioned. The arbitrator found that the issue was whether a reasonable inference could be drawn from the remarks that they were directed at the employer, thus creating a connection between the employees misconduct and the business of the employer. The arbitrator found this to be the case in that instant.


In the EDCON judgment, the employee fell within a group of employees whose identity largely remained anonymous, the court however provided:


“…once their identities are exposed to the general public, it must only be in a positive and not negative environment or circumstance, otherwise such disclosure imposes a risk that the name of Edcon may be brought into disrepute.”


Social media misconduct not only opens up the employee to dismissal, it further leaves employers exposed to vicarious liability for discrimination, harassment and defamation claims. In the case Pehlani v Minister of Police (9105/2011) [2014] ZAWCHC, the High Court held that it is not necessary for an employee to be acting within the course and scope of their employment to fall foul, provided a connection can be drawn between the misconduct of the employee and the employer’s business.


With the festive season approaching, employers must encourage employees to be mindful of the company’s social media policies and procedures, and most importantly their social media conduct as the failure to do so is likely to have devastating consequences for both the employer and its employees.


For more information contact Nicholas Preston at 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com








Carrying weapons during strike action: potential ground for dismissal

By Jacques van Wyk, Director; Andre van Heerden, Senior Associate; and Chelsea Roux, Candidate Attorney



Whether an employer is justified in dismissing employees carrying weapons during a protected strike.



Employees engaged in strike action who carry dangerous weapons during a strike run the risk of dismissal. The act of carrying weapons exposes others to the risk of injury and also serves to threaten and intimidate others. This kind of conduct is not protected by the right to strike.



In the matter of Pailprint (Pty) Ltd v Lyster NO and Others (2019) 28 LAC 1.11.47 the Labour Appeal Court (“LAC“) had to consider the above issue. The facts of the matter are set out briefly below.


On 1 July 2014 a number of Pailprint (Pty) Ltd (“employer“) employees participated in a national strike called by their union, the National Union of Metalworkers of South Africa (“NUMSA“). The employees were employed in various positions at the employer’s factory. The employer’s disciplinary code provided, among others, that the “[b]randishing or wielding of dangerous weapons” was a dismissible offence.


Furthermore, the employer’s picketing policy stated that:

  • picketers may not “engage in unlawful or violent actions”;

  • “no weapons of any kind are to be carried or wielded by the picketers”; and

  • the employer may take disciplinary action “where an employee’s actions during a picket are in breach of the organisation’s disciplinary Code”.


The employer’s 2012 strike policy also stated that it had zero tolerance for “any violent acts, intimidation or vandalism” during strikes and that “any employee caught behaving in a violent manner (which included verbal abuse), vandalising property, preventing anyone from entering or participating in work or intimidating any other person in any form or manner” would be disciplined.


During the strike, the employees were seen carrying sticks, a sjambok and lengths of piping. They were also in the presence of employees who carried a golf club and an axe. These acts were regarded by the employer as being in contravention of the employer’s picketing rules and the employees were called to disciplinary hearings. Following disciplinary hearings, the employees were dismissed for the “brandishing or wielding of dangerous weapons during [the] strike”.


Commission for Conciliation, Arbitration and Mediation (“CCMA”)

Aggrieved by their dismissals, NUMSA, acting on behalf of the employees, referred an unfair dismissal dispute to the CCMA. At the arbitration, the employer presented graphic photographs of severe injuries sustained by two individuals during the course of the strike. This evidence was not challenged or rebutted by the employees.


The arbitrator had regard to the fact that during the disciplinary hearings, more than one of the employees “disingenuously testified that neither a stick nor a sjambok could inflict any harm”. However, the arbitrator also found that it was not shown that the employees had brandished or wielded weapons but that they were “just carrying sticks in their hands”. The arbitrator found further that there was no evidence that they intended to threaten or intimidate anyone. He held further that the employees were in partial breach of a valid and reasonable rule of the employer. Given that the picketing policy was placed on the company’s notice boards, the arbitrator found that the employees were aware of the rule or could reasonably have been aware of it. The employees’ state of mind when they decided to picket with sticks in their hands and the fact that they had “voluntarily associated” with others who carried a golf club and an axe was also taken into account by the arbitrator. The arbitrator rejected the claim by the employees that they were exercising their traditional and customary right to carry sticks as a “grossly improbable scenario”.


With regard to the sanction imposed, the arbitrator held that the employees “did not brandish or wield the weapons” but instead carried them. He held that neither the picketing policy nor disciplinary code indicated what the consequences of their breach would be. It was held that the disciplinary code was intended to regulate the behaviour of employees while “on-duty” and not when they were on strike and effectively off-duty. The arbitrator found that the sanction of dismissal was inappropriate and substantively unfair. The employees were reinstated from the date of the arbitration with a final written warning valid for 12 months.


The arbitrator noted in conclusion that the award should not be interpreted to validate the carrying of weapons during a strike however if the employer wished to outlaw this practice, it should amend its disciplinary code to inform employees that the mere holding of any object that could intimidate others or inflict harm could result in dismissal.


Labour court’s decision

The employer was dissatisfied with this award and brought a review application before the LC.


On review, the employer argued that the arbitrator had committed a gross irregularity in the conduct of the proceedings and had arrived at a decision which a reasonable arbitrator would not have arrived at with the evidence before him. In particular that the arbitrator had agreed that dangerous weapons had been carried, that the employees were part of a crowd carrying a golf club and an axe, that the evidence showed the severe assaults on certain individuals during the course of the strike and that the disciplinary code was applicable to the misconduct.


The LC did not find the award unreasonable and dismissed the review application. The employer appealed to the LAC.


Labour appeal court’s evaluation

The LAC held that it was common cause that the employees carried the sticks and piping and were in the presence of individuals carrying a golf club and an axe. This conduct was clearly in breach of the employer’s policy and disciplinary code. There was no dispute that this rule was valid and reasonable and its purpose was clear. The LAC thus found it difficult to comprehend how the arbitrator could conclude on the evidence before him that the rule had only been partially breached when the employees’ conduct was expressly prohibited.


The LAC held that it was clear that the arbitrator did not have regard to the importance of the rule breached or the reason the employer imposed the sanction of dismissal. The seriousness of the breach had been overlooked by the arbitrator.


The Labour Court erred in finding that the arbitrator’s award fell within the bounds of reasonableness. The LAC set aside the arbitrator’s award and found that the employees’ dismissal had been substantively fair.


Importance of the case

The right to strike, like most rights, is not absolute and it does not allow for the encroachment of another’s right to safety. The LAC held that carrying dangerous weapons on a picket line, by its very nature, exposes others to the risk of injury and also serves to threaten and intimidate. This was not the intention of the legislature when it provided for the right to picket.


It is worth noting that the over formalistic phrasing of the charge against the employees as “brandishing or wielding” weapons was to the detriment of the employer. Employers are advised that charges against employees need not resemble formal criminal charges and it is permissible for an employer to state and describe the employee’s offence in plain language. It is nonetheless important to have policies and procedures in place (as was the case in the present instance) that make it clear such conduct will not be tolerated.


The facts of this dispute arose before the new Code of Good Practice: Collective bargaining, industrial action and picketing (“Code“) came into force on 19 December 2018. The Code regulates, among others, the use of dangerous weapons.


The Code makes express reference to the Dangerous Weapons Act 15 of 2013 which defines a ‘dangerous weapon’ as “any object, other than a firearm, designed as a weapon and capable of producing death or serious bodily harm, if it were used for an unlawful purpose”. The Code provides that the police may intervene if a person is carrying or believed to be carrying a dangerous weapon and that in the context of a picket and/or industrial action, there is no justifiable reason for the possession or display of such an object.


For more information, please contact Jacques Van Wyk at  or  Andre van Heerden at 

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com







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