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 actions of a third party. The third party also may or may not carry any share of the liability. Vicarious liability can arise in situations where one party is supposed to be responsible for (and have control over) a third party, and is negligent in carrying out that responsibility and exercising that control 3. Vicarious liability is a legal term that finds faults in a party that did not injure a person directly. A common situation is where a nurse injures a person and the court finds the hospital and the employer guilt of those damages.

Under federal anti-discrimination law an employer, regardless of their size, may be legally responsible for discrimination and harassment which occurs in the workplace or in connection with a person’s employment unless it can be shown that ‘all reasonable steps’ have been taken to reduce this liability. This legal responsibility is called ‘vicarious liability’. Many employers are unaware that they can be liable for a range of actions committed by their employees in the course of their employment - these can include bullying and harassment, violent or discriminatory acts or even defamation and breach of copyright. It's also possible to take action against an employer for the behaviour of third parties, such as clients and customers, provided these parties are deemed to be under the control of the employer. 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:
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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:
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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 person employed by a trade union harassing a member

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a person operating an employment agency who harasses someone who uses the agency

So what practical steps can employers take to avoid vicarious liability for the acts of their employees? It is recommended that employers take the following ‘reasonable steps’ to prevent harassment and reduce their vicarious liability:
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obtain high level support from the chief executive officer and senior management for the implementation of a comprehensive strategy to address discrimination and harassment develop in consultation with staff or their union a written policy which prohibits discrimination and harassment consult relevant parties including staff, employer organisations, unions, industry and professional associations, state and territory anti-discrimination agencies, when developing anti-discrimination or anti-harassment policies regularly distribute and promote the policy at all levels of the organisation translate the policy into relevant community languages where required so it is accessible to employees from culturally and linguistically diverse communities ensure that managers and supervisors discuss and reinforce the policy at staff meetings (verbal communication of the policy is particularly important in workplaces where the English language ability of staff is an issue) provide the policy and other relevant information on discrimination and harassment to new staff as a standard part of induction periodically review the policy to ensure it is operating effectively and contains up to date information display posters on notice boards in common work areas and distribute relevant brochures (these may be obtained from the Commission, state and territory antidiscrimination agencies and/or relevant unions) train all line managers on their role in ensuring that the workplace is free from discrimination and harassment ensure that line managers model appropriate standards of professional conduct at all times include accountability mechanisms in position descriptions for managers ensure that selection criteria for management positions include the requirement that managers have a demonstrated understanding of and ability to deal with discrimination and harassment issues as part of their overall responsibility for human resources (competence in this area can be tested at selection interviews) check that managers are fulfilling their responsibilities through performance appraisal schemes conduct awareness raising sessions for all staff on discrimination and harassment issues

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remove offensive, explicit or pornographic calendars, literature, posters and other materials from the workplace develop a policy prohibiting inappropriate use of computer technology, such as email, screen savers and the Internet.

When deciding what level of preventative action is reasonable, an employer should consider:
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the size and structure of the organisation available resources the nature of the work undertaken gender imbalances in the workplace the employment of women in non-traditional areas the number of junior staff the workplace culture cultural diversity in the workplace any history of harassment any relevant provisions in industrial awards or agreements working hours level of supervision Any other relevant factor, such as geographic isolation of the work location, duties which require working in close physical proximity, live-in arrangements, etc.

An employer can avoid vicarious liability when:
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The employee's conduct is not within the scope of his or her employment The employer has no knowledge of the conduct or approves such conduct The employer acted reasonably to prevent and correct any negative actions The employee unreasonably failed to use any preventive or corrective measures offered by the employer to avoid harm or injury.

However the vicarious liability provisions of the legislation do not preclude individual persons from being held liable for their own discriminatory or harassing behaviour in the workplace or in connection with their employment. It may be that both the employer, who has been found to have not taken all reasonable steps to prevent the discrimination and harassment from occurring, and the individual, who is the alleged discriminator or harasser, will be held jointly liable for the behaviour.

REFERENCE
 http://www.legalmatch.com/law-library/article/employment-vicarious-liability.html