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Commercial Law Essay

1484 words - 6 pages

THE CONTRACT OF EMPLOYMENT
The contract of employment is often referred to as the contract of service which in reality is a sub-species of the contract of lease. The employee leases his labour and skill and gets remuneration in return.

Incidents of Employment contract-Vicarious Liability definitions
1. Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment. 2. It is also a situation in which one party is held partly responsible for the unlawful ...view middle of the document...

The key question of any case of vicarious liability is whether the employee was acting in a personal capacity, or in the course of their employment. This can often be difficult to determine. Nor does an employer's liability end once the employee leaves the organisation as the law stands, action can still be taken against an employer even though the person in question no longer works for them. This means the employer may be held vicariously liable for the actions of employees if they have not taken all reasonable steps to prevent the discrimination and harassment from occurring both within the usual work environment and at employer events, such as sponsored seminars, conferences, work functions, Christmas parties, business or field trips.

CASE (KHOSA VS CARGO CARRIERS) On the 8thOctober 1998 the plaintiff boarded the defendant’s truck which was traveling to Harare on the Beitbridge/Masvingo Road. The defendant’s truck overturned injuring the plaintiff in the process. The plaintiff was hospitalized for a long time at Masvingo, Bulawayo, Harare and finally Masvingo Hospitals. When he was finally discharged from Masvingo hospital he was wheel chair bound as his right leg had been amputated above the knee. He had also sustained a fracture of the right humerus. His right hand had been pinned for restoration hence his inability to use clutches. At the trial the pin had been removed. He was then able to use clutches but for short distances. He has been forced into this by the breakdown of his wheel chair and his inability to have it repaired. His right side has very limited use. At the pre-trial conference the parties agreed on the following issues:1. Whether or not the defendant is vicariously liable for the plaintiff’s injuries arising out of the accident. 2. If so what is the quantum of damages arising from injuries sustained by the plaintiff. In the result the courts ruled that the defendant is not vicariously liable for the delict of its driver who drove negligently after giving a lift to the plaintiff. An employer can be vicariously liable for his employee's actions when:
    

The employer knowingly hires unqualified employees and a harm results An employee was unfit to be retained and that a supervisor knew of this employee's unfitness Failure to provide adequate supervision leads to an injury Insufficient or no policies or procedures are in place and leads to injuries Failure in training or directing employees in their job duties leads to an injury

An employer may be vicariously liable for the conduct of:
       

individual employees or groups of employees directors, supervisors or managers workplace participants (where two people work on the same premises, but have different employers) agents (eg. insurance salespersons operating on a company’s behalf ) contract workers or people being paid commission a partner of a company harassing another partner members of organisations which grant occupational qualifications a...

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