Of Employees

I’ve been doing a little reading on Vicarious Liability (VL) recently. Every employer out there should be aware of their exposure under this tort – start-ups even more so. VL is typically employer (ER) being held vicariously liable for any tort committed against a third party (P) by their employee (EE).

But that’s just the simplistic overview. The legal requirements for vicarious liability are that:

  1. there must be a legal tort committed by the EE against P;
    There must be one of the other legally recognised torts committed by EE against P. There is no ifs no buts. This was highlighted in the case of Kerajaan Malaysia v Lay Kee Tee & Ors which involved the pig farmers suing the government for negligence during the Nipah virus episode that resulted in 40+ deaths. It was held that they could not sue the government directly for negligence but had to first show that there was a tort committed by the government employee first, before that liability can be transferred to the government.
  2. that there exists a special relationship between ER and EE;
    Vicarious liability is by no means limited to ER and EE but that’s just the most common, and easy to understand. There are generally three tests that can be used to see if someone is in a special relationship:

    1. Control Test
      It was laid down in Short v J & W Henderson Ltd that four factors are to be considered i.e:

      • the power to selection in the ER.
      • the power to determine the salary or other remuneration.
      • the power to control the method in which the work was done.
      • the power to terminate the EE’s services.

      It was further added in Collins Hertfordshire CC that a contract of service existed if the employer had the power to instruct the employee and to control the method in which work was done.

      However, this test has been found wanting as there are lots of cases of people who are employees but whose employers have no power to control their work e.g. doctors in a hospital and other professionals.

    2. Organisation Test
      It was held in Stevenson, Jordan and Harrison Ltd that it was not so easy to differentiate between a contract of service with a contract for services. So, another consideration would be whether a person was integrated into the organisation or merely doing work for the organisation.

      In Mat Jusoh b Daud it was held that while the plaintiff was not their employee but an employee of their contractor, his work product was integral to their business and was therefore their employee. Hence, the integrity of the task being done is just as essential to determining whether a person is an employee, and not just to follow the classical definitions.

    3. Mixed Test
      This is also called the common sense test. It is essentially a combination of both the tests above to determine if any special relationship exists between the ER and EE.

    However, in Malaysia, the preference is to use the control test. I think that this is because that is much easier to prove on paper than to get into the convoluted and subjective organisation test. In a majority of cases, there is no problem in proving employment. However, there are some grey areas such as surgeons at a hospital.

    In Tan Eng Siew v Dr Jagjit Singh, it was held that as the doctor had a private practice and was merely renting the hospital facilities such as operating room etc, the hospital could not be held liable to the plaintiff.

    Also, another grey area is where employees are seconded or lent to another organisation. It is held in Mersey Docs and Harbour Board that because the seconded employee, although working for the new employer, was actually still under the control of the old employer, the old employer was liable.

  3. the tort must be committed during the course of employment.
    The general rule is that if the tort was committed while in the ‘line of duty’, the employer should be held ultimately liable. This is much more difficult than it sounds because the problem then becomes, what is considered ‘line of duty’.

    • Carelessness while on the job.
    • Mistake of worker.
    • Worker delegating responsibility.
    • Worker acting for own benefit.
    • Protecting employer’s property.
    • Disobeying direct orders.
    • Frolicking.
    • Fraud.
    • Theft.
    • Sexual abuse.
    • Statutory duty.
    • Time of employment.
    • Location of employment.

    Each of these things have a whole set of issues to be considered. Time for that in a future blog entry.

Defamation

source:sxc.huSo, what is defamation? My entry today will focus on defamation through blogging, as I blog a lot – like I just claimed yesterday that our PM was either misinformed, lying or delusional.

I was unimpressed by our lecturer, Dr Wardah, today as she seemed unprepared for the topic, lacked familiarity with the material and not quite a specialist in the topic. She started the class by saying that she was ‘dragged’ into it by Norchaya. That already sounded the alarm bells in my head.

She seemed to be reading from some personal notes, which she didn’t seem to be totally familiar with. When asked some tricky questions, she didn’t know the answers and gave non-answers, which is the typical method that lecturers use to handle topics that they’re not quite specialised in.

According to the university website, her area of specialisation is sports law and while that is probably tort, it probably doesn’t have much defamation in it. So, I can at least empathise with her (being guilty of similar things myself).

My comments here are done without malice as I have no personal agenda against her. My only relationship with her is as a student. I hope that she’ll do better in the next class, just like how I’ve actually grown quite fond of Pn Izura, after she nearly put me to sleep in the introductory class.

Anyhow, I claim fair comment, if she ever reads this! (So, I did learn something in class today!)

Now, back to the issue of defamation. I thought I had it nailed down before this but now it seems that things are murkier. I shall have to read up more about defamation on my own later.

Slander vs Libel
Defamation is broken up into two categories – slander and libel. I’ve already covered the differences in a previous entry and I shan’t go through them here again. I would just add that I was quite surprised that I was able to remember the 4 types of defamations that are actionable per se in class today. My mnemonic must work – virgin, STI, rape, and prostitution.

So, blogging would clearly fall under libel.

Elements of Defamation
Now, there are three major elements that must exist before we can have a prima facie case for defamation.

  1. Words – This means that the words must be defamatory. Keep in mind that words in this case does not just mean spoken or written words but covers a broad swath of communication including imagery, signals, body language etc. Whether they are defamatory can be tested using a number of methods:
    • Ordinary/Natural meaning – as it implies. If I call someone a liar, that can possibly be defamatory as the ordinary meaning of liar is obviously negative. However, there may be some subjectivity especially since the connotation behind words can change with time.
    • Inference/Innuendo/Juxtaposition – as it implies. This can have a wider reach as we often imply but not directly accuse someone of something negative in our culture. Again, there may be some subjectivity as this is often influenced by culture and social norms that change with time.
  2. Identity – This means that the defamatory words must be aimed at someone that can be identified by a third party. Keep in mind that it is perfectly possible to defame a group of people or organisation. And the main point here is that the person doesn’t need to be named directly. It is sufficient that the person can be identified by a reasonable third party.

    That is why I don’t understand why Malaysian newspapers like to beat around the bush when naming people. It piques my interest even more as I would try to figure out who they were talking about. It is not a valid legal defence even if they don’t name the person, as long as they provide enough information to identify that person.

  3. Publication – This means that the defamatory words must reach a third party i.e. the Person must have been defamed in the eyes of another by the Defamer (woot!). There are lots of issues here with publication, but in terms of a blog like mine, there is no real issue as it is clear that the words written here are published to the world.

    There may be some concern, particularly if I am not making the claim but merely quoting some other article or merely reporting something that was said by someone else. I am not quite clear with this part yet but I will look into it for sure.

So, once these three elements have been met, there will be a prima facie case for defamation. Once sued, the Defamer has a number of legal defences that can be raised. However, we shall cover that in another blog entry.

Libel vs Slander

There is often confusion between the two main forms of defamation – libel and slander. The general perception is that slander is spoken while libel is written. The more accurate classification is that libel is in a permanent form (e.g. book, carving, video, painting, etc) while slander is in a non-permanent form (e.g. spoken words).

However, what I did not know before this is when can legal action be taken.

Libel is actionable per se meaning that the plaintiff can take legal action directly. This explains why local newspapers are so ambiguous when they comment on any story. They just won’t come out and say whom it is but would rather beat around the bush and give us readers a puzzle to solve.

Unfortunately, this is not necessarily defensible under the law either as the law does not require a person to be specifically named nor does it care about the use of pseudonyms or fake names. All it requires is that a person be identifiable by someone who knows him/her reasonably well.

Slander requires that the plaintiff prove that there are special damages. What this means is that it is generally more difficult to sue for slander than for libel. However, there are exceptions in several specific instances:

  • Claims that a woman is unchaste.
  • Claims that someone has some disease.
  • Claims that a person has committed a crime.
  • Claims that a person or business is unprofessional.

To make this list easy to memorise, I’m going to remember it as virgin, STI, rape, and prostitution. These slanders are actionable as they immediately affect the esteem that others might have towards a person, which is the principle thing that the law tries to protect – not one’s self-esteem.

What I don’t get is the virgin. It’s not actionable if someone claims that a man is not chaste but if the same claim is directed at a woman, it becomes slander. That’s extremely biased and unfair to say the least. It sends the wrong signal.

So, now I know.

How this relates to me is pretty simple – I blog a lot.

That means that I have to be careful about what I write on my blog as they are libel and actionable per se. It also means that I cannot claim that a professional is behaving unprofessionally as that would be actionable slander as well. Other than that, I’ll just need to be careful.