CHAPTER 4. THE POTENTIAL RISK TO EMPLOYER
4.3 ESTABLISHING VICARIOUS LIABILITY
96 | P a g e The cases above illustrate that employee social media posts are made publicly460 similar to publications in the newspaper which employee have no control over.461 An employee’s preference of privacy settings does not mean that the posts are any less public.462 If the employee’s post harms the interests of an employer, misconduct can be established and where the post causes harm to a third party, it could render the employer consequentially liable.
97 | P a g e action. A crucial determining factor is whether the employee was promoting the interests of employment at the time of the commission of the act.468
The implications of vicarious liability in instances of employee social media misconduct are that an employer would have to compensate a third party who sustained injury emanating from such misconduct.469 Establishing the criteria in the test stated above is problematic since social media misconduct can arise during and after work hours. Straightforward cases would occur when the employee publishes a post on social media during work hours. Problematic cases would emerge when the employee’s post occurs after working hours. The claimant would have to aver that the employee’s misconduct caused a delict. A delict is a civil wrong against another person. It comprises of five elements namely, conduct, wrongfulness, fault, causation and damages. A delictual claim will only arise when all five elements have been satisfied.470 The courts would have to consider the merits of each case of social media misconduct and determine to what extent the employer was implicated in the post and if the post was work related.
If these criteria can be satisfied by a claimant, then an employer can be found vicariously liable for the employee’s social media misconduct. Employers who exempt vicarious liability in employment contracts and by implementing social media policies cannot escape liability.471 If the employee post can be identified as promoting the employers’ interests when making the post on social media a court may make a finding that the employer is vicariously liable.
The test for vicarious liability has not been absolute and has created anomalies in cases which deviate from the norm. The test as it stood enumerated a method for employers to simply establish that an employee's actions occurred outside the scope of employment and thereby escaped liability. This rendered the common law test uncertain.
4.3.1 The existence of an employment relationship at the time of the commission of a delict
The relationship is evidenced by an agreement by one party pledging their work capacity or energy to another party for remuneration. This is done in such a way that the latter party may
468 Feldman supra note 426 at 756-757.
469 McGregor, Dekker & Budeli op cit note 64 at 42.
470 J Neethling & J Potgieter op cit note 70 at 3.
471 Feldman supra note 426 at 756-757.
98 | P a g e exercise authority over the former. The Gibbins v Williams case found that a contract of service must exist.472 This is distinguished from a contract of mandate which concerns an agreement in terms of which one party undertakes to render services to another for remuneration with the exclusion of an element of control or authority over the other.473 Contracts of mandate involving independent contractors do not attract vicarious liability.474
The question of control or authority does not relate to factual control but rather the right of control and is an important factor in determining whether a wrongdoer is an employee. This concept has become eroded and is no longer a decisive factor to be considered in the test for vicarious liability.475 The Appellate Division utilized the ‘dominant impression’ test as indicated in the Smit case.476 Later in the Transnet case the Supreme Court of Appeals held that to determine the relationship between the parties, a multi-faceted test should be utilized taking into account all relevant factors and circumstances of the specific case.477
4.3.2 The employee must commit a delict
This requirement indicates that employers may raise any defence which would ordinarily be available to an employee.478 Since the employee is also directly liable, the employer and employee are regarded as joint wrongdoers against a prejudiced party. The right of recourse however is only available to the employer.479 The employer must be able to show that the employee’s conduct of publishing a post on social media was done wrongfully in the sense that it was done unlawfully or untruthfully and constituted a form of misconduct. The employer must be able to dissociate itself with the social media post and establish that its occurrence was the fault of the employee which caused an infringement of the trust underpinning the employment contract and causing a third-party damage.
472 P Boberg The Law of Delict: Aquilian Liability (1984) 220 and Gibbins V Williams, Muller, Wright en Mostert Ingelyf 1987 (2) SA (T) 90.
473 Ibid at 510.
474 Pienaar v Brown 2010 (6) SA 365 (SCA) 368 – 369.
475 Gibbins v Williams, Muller, Wright en Mostert Ingelyf 1987 (2) SA (T) 90.
476 Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) 62-63.
477 Midway Two Engineering and Construction Services v Transnet Bpk 1998 (3) SA 17 (SCA) 23.
478 De Welzim v Regering van KwaZulu Natal 1990 (2) SA 915 (N) 921.
479 Botes v Van Deventer 1966 (3) SA 182 (A) 205-206.
99 | P a g e 4.3.3 The employee must act within the scope of his employment at the time that the delict is
committed.
This requirement will be satisfied if the employee acts in the execution of fulfilment of his duties under the employment contract. The employee will act outside of such a scope if he disengages himself completely from his employment and promote his own objectives exclusively. The determination of whether this requirement has been satisfied is subjective and objective.480 Premised on the subjective and objective tests, if an employee commits a delict outside of working hours the court would have to determine the employee’s intention at the time of making the social media post and if the post was closely connected to the endeavours of the employer. If the employee’s social media post causes the employer disrepute, the employer can establish misconduct and dismiss the employee, but the employer might not be able to escape liability to a third party. To escape liability to a third party, the employer would have to provide evidence of the employee’s duties either though employment contract or accepted work standard and that there was a clear deviation of the employee from his duties.
In the Rabie case the court stated that in anomalous cases the test provides that an employer may still be held liable if an employee had abandoned his business responsibilities and committed a negligent act on their own provided that there is a ‘sufficiently close connection’
between the actions of the employee and employer's enterprise. This test created an objective and subjective component. Subjectively the test determines the intentions of the employee at the time of committing the act and objectively the test determined if there was a sufficiently close link to the negligent conduct of the employee and the employer’s enterprise.481
In the Minister of Safety and Security v Morudu case the Supreme Court of Appeals reapplied the test in the Rabie case. Here, the Supreme Court of Appeals upon exercising the test found that the employee conducted himself to further his own interest and that there was an insufficiently close link between the employee conduct and business of the employer.482 The court concluded that the employee’s conduct was a ‘radical deviation from the tasks incidental to his employment’.483
480 J Neethling & J Potgieter op cit note 70 at 393.
481 Rabie supra note 423.
482 Minister of Safety and Security v Morudu and Others 2016 (1) SACR 68 (SCA).
483 Ibid.
100 | P a g e In the Booysen case the Supreme Court of Appeals again applied the test for vicarious liability and found that there was an insufficient connection between the employee’s conduct and his duties as a police officer.
It is evident from the various approaches exercised by our courts that the burden of proof on an employer may increase to establish an insufficiently close link to any employees conduct and the business of the employer.484 Employers wishing to escape such liability must clearly set out the duties of employees and implement preventative measures for dereliction of such duties to be envisaged in a bona fide employment contract.
The implications of the test for vicarious liability in relation to social media misconduct indicates that employers would have a greater onus to establish that an employee’s social media post is insufficiently linked to the employer’s business.485 Employers would have to establish the employee social media post fell out of the ambit of the employment contract which regulates the employee’s duties.486 Employers would have to prove that the employee post were contra to the employers’ interests. If the employee makes the social media post subject to instruction from the employer and such a post is condoned in the employment contract and employer’s social media policy, such an employee post may not be categorised as social media misconduct but may still render the employer vicariously liable if the claimant can establish a sufficiently close link between the employee post and the employer’s business interests.487