The principle of vicarious liability holds employers accountable for the tortious acts committed by their employees during their employment. However, the boundaries of this rule are often blurred, making it challenging to discern whether an employee’s actions fall within the scope of their employment, or if it is a personal detour. The ability to make this distinction is crucial, as it determines whether the employer can be held responsible for the employee’s misconduct.

In GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669, the Federal Court addressed this intricate issue, providing valuable insights into the criteria used to determine when an employee’s tort is considered to have occurred within the scope of their employment.

Brief Facts

  • The employer, GMP Kaisar Security (M) Sdn Bhd (“Employer”) hired Jaafar bin Haalid (“Jaafar”) and placed him with one of its clients to act as a personal bodyguard.
  • While Jaafar was performing his task as a bodyguard, he suddenly shot and killed his client. 
  • Jaafar then fired the gun randomly at members of the public. One of the persons shot was Mohamad Amirul (“Amirul”) who was riding his motorcycle along the expressway.
  • Amirul suffered physical injuries as a result of the shooting, as well as post-traumatic stress disorder. He filed a claim in tort against Jaafar as well as the Employer based on vicarious liability.
  • The matter made its way up to the Federal Court.

Federal Court’s Findings

The Federal Court held that the relevant factors for determining the scope of the employer’s vicarious liability are as follows: – 

  1. The intentional wrong must be committed by the employee in the course of employment;
  2. There must be connection between the wrongful act and the nature of the employment;
  3. The nature of the employment is such that the public at large are exposed to risk of physical or proprietary harm; and
  4. The risk is created by the employer, owing to the features of the business. 

The Federal Court noted that whilst Jaafar’s actions may have been unauthorised by the Employer, the central issue is whether Jaafar’s tort was so closely connected with his employment that it would be fair and just to hold the Employer vicariously liable. 

Ultimately, the Federal Court held that the Employer was vicariously liable for Jaafar’s actions. In reaching this decision, the Federal Court placed a great deal of importance on the feature of the Employer’s business, being:  

  • The Employer was responsible for selecting and employing Jaafar as a personal bodyguard.
  • For this purpose, Jaafar was equipped with a firearm (that was used to commit the tort). 

The Federal Court further note that by equipping Jaafar with the firearm, the Employer had created a risk which exposed the public to potential harm. 

At that material time, Jaafar was performing his assignment as a bodyguard. Hence, Jaafar’s wrongful actions were closely connected to his employment (as a personal bodyguard) and was not independent from the task that he was employed to do. Therefore, the High Court and Court of Appeal were right in reaching the conclusion that the Employer was vicariously liable for Jaafar’s wrongful actions. 

Key Takeaways 

The Federal Court compared two English cases involving incidents where a police constable discharged a firearm at a member of the public. In one case, the employer was found to be vicariously liable due to the act of shooting being carried out in furtherance of the constable’s assertion that he was performing his duties as a police officer. Conversely, in the other case, there was no vicarious liability as the constable had abandoned his post to pursue a personal vendetta.

Therefore, determination of whether an employer can be held vicariously liable depends on the specific factual matrix and circumstances of each case. The test to ascertain the proximity between the act and the employment must be applied on a case-by-case basis, considering the particular set of facts.

The concept of vicarious liability has witnessed substantial evolution, and this case underscores the importance of employers assuming responsibility for the actions of their employees, even in situations involving intentional wrongdoing that no reasonable employer would have authorized.

Employers should be mindful of the risks inherent in their business operations and implement appropriate measures, especially when it comes to screening potential employees before hiring them, and before placing them in situations where there is a potential risk of harm to others.

***

This article was written by Yan Nie, Th’ng (Partner) and Leow Ho Eng (Associate) from Donovan & Ho’s employment law practice. 

Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations.  Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.

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