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Your employee just insulted his ex-boss... Now you're being sued

by , 29 September 2015
Jonathan sent a scathing email to his ex-boss, calling her names you and I would never dream about using. She's rightfully angry and is going to take you to the cleaners.

Wait, did I say take you to the cleaners?

Yes, I did. All because Jonathan sent the email from his work email address, using his work computer! Not really fair, is it? But it's all because of something called vicarious liability. 
Here's what you need to know and how you can protect yourself...
Don't get penalised for someone else's wrongdoing: Make sure your employees have the necessary qualifications for the job
For instance, when you hire drivers make sure they have genuine and valid driver's licenses, and their driving knowledge and skills are competent. 
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What exactly is vicarious liability?
Basically, it's a fancy legal term for you being held responsible for the offences of someone you 'control'. Such as your employee in this case.

But you can only be held vicariously liable in these three instances:
  1. The person at fault must be your employee;
  2. His act is illegal and negligent, or deliberate and hurts or causes loss to someone else. For example, your employee skips a red traffic light and hits another car. He damages his car and injures the other driver. 
  3. He's carrying out his job when the incident happens. 

The bad news is that you can't avoid liability by saying you weren't involved or you didn't know it was happening. Keep reading to find out when you can be held liable...
You want to dismiss an employee but do you know how to go about it?
How do you actually write 'Mr … was lazy and unreliable' in a legally correct way when giving a reference? And in such a way that the employee cannot sue you later! Believe it or not:
Even a '!' in the wrong place may be the reason that you lose a case at the CCMA. The frustrating thing is, it's exactly such petty errors and similar loopholes in the labour law that mean employers lose 51% of all CCMA cases.
These technicalities don't apply to references only, but also to written warnings and dismissals.
But how do you dismiss correctly? How do you make a dismissal stick, even if it goes to the CCMA? Find out here...

Seven situations where you could be vicariously liable for your employee's actions
You can be held liable for your employee's actions in the following cases:
  1. Committing fraud. If your in-house accountant doesn't pay your company's VAT to SARS, on purpose. Your company could be held liable.
  2. Insulting someone. If your employee uses your computer to send insulting messages to his ex-boss, the ex-boss could sue you for 'injury to her dignity'.
  3. Defamation of character. If your press officer insults a customer when answering a press enquiry, your customer could sue you for defamation.
  4. Injury to another person. If your employee knocks over a pedestrian while driving your company car, you can be held liable for the death or injury to the victim. 
  5. Damage to property. If your employee damages someone else's property, you may be liable to that person for the expenses and/or losses he's suffered. 
  6. Sexual and racial harassment. If your employee sexually harasses a fellow employee or client, you could be held liable for his conduct. 
  7. Racism and discrimination. Your employee makes racist comments to a colleague or client. You may be vicariously liable, not only because they were insulting and caused injury to his dignity, but also because they're discriminatory and banned by the Employment Equity Act.  

But there is good news too. You can take out insurance against liability for the cost of damages from all acts carried out by your employees, or you could sue them for the money after you've paid it.


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