# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Liabilty cliam against an apprentice

## ians

Maybe someone can answer this question, 

Let say i own a motorcycle, and one day i decide to take it in to have the back tyre replaced. I send it in to my local brand name dealer, expecting the best workmanship. 

First the brake system  must be removed, then the axle, then the chain is lifted off and bingo the wheel is off. They put a new tyre on and off i go, with a smile on my face, however when i take the off ramp and start slowing down i hear a load bang and so other strange noises. Cut a long story short, the brake caliper was not tightened, the bolts came out, the whole brake goes flying off, which meant i had no brakes. 

Who would be liable for the damages, 

I would asume that the company would have to pay for everything and should have all types of insurance to cover this type of incident.

The question is, can the company hold the apprentice liable who worked on the motorcycle and make him pay for all the damages and fire him, or make him pay for all the damages and give him a final written warning? 

Taking into consideration that the apprentice has completed the module which covers this type of work and passed the required tests.

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## AndyD

From purely a laymans point of view;

If the apprentice had been trained to do this specific work safely them he may have been negligent in not tightning the bolts so some kind of disciplinary action may have been warranted by the company. But.....The company allowed an apprentice or trainee to conduct the repairs unsupervised when the company ought to have had some kind of quality/safety control system in place to check his work so their QC systems are inadequate. Also if the company had no supervisor responsible for overseeing the apprentice then they were actually using (read 'mis-using') him as a fully fledged mechanic, this was not his job description and could have contributed significantly toward the end result and damage.

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## Dave A

My thinking was along similar lines to Andy's. When you say apprentice and "trained", they're still apprentices for a reason.

If there is sufficient workplace experience on the task already in place, I'm sure a disciplinary process against the apprentice would not be out of order. Depending on the merits of the case it could result in a written warning, final warning or even dismissal (probably not if it's a first offence). 

But when it comes to recovering the cost of the error - well that's why apprentices don't earn the big bucks yet. I suggest the responsibility for the appy's work still sits with the qualified mechanic in charge of the appy.

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## sterne.law@gmail.com

I am in agreement with the above.

The apprentice could face disciplinary action along the lines of poor work performance or negligence.
Dismissal would be out of the question, unless he has had a few such incidences.
As to deducting money, nothing would stop the company, but again the supervisor/trainer should be held, at the very least, jointly accountable.
If the company is insured, and claims, then deducting from the employee would be a form of fraud. (Many companies will probably rather not claim because of affecting the premium, the converse being that if you paying the apprentice R1500 and the damage is R5000, you are never going to recover your money at a rate of R300 per month)
The motor industry has an extensive collective agreement and might have a rule with regards to apprentices. (I will come back to you on this).

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## sterne.law@gmail.com

Reply re motor industry specific

The are no special rules governing an apprentice in the motor industry when dealing with possible misconduct. Proper procedure in terms of a hearing must be followed. If the apprentice is found to be negligent, then payment in terms of the damage can be deducted from the employee's wage, with the deduction being no more that 30% of his weekly wage. That can be coupled with a final written warning for the negligence. I would think that dismissal on the first instance would be too harsh.

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AndyD (23-Aug-12), Dave A (23-Aug-12), ians (23-Aug-12)

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## daveob

> Who would be liable for the damages


I suppose that a lot depends on who's asking the question.

If it was my bike, I had a contract for work done with the company. Therefore I would hold the company liable for any faults.

Any attempt by the company to cloud the issue by pointing blame to the worker, would be of no concern to me, and would be considered a hostile attempt to try and avoid liability. That should be an internal affair of the company.

If you're the apprentice, then the replies given are relevant. But as the customer, you are dealing with the company, not the individual employees of the company.

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## ians

> Reply re motor industry specific
> 
> The are no special rules governing an apprentice in the motor industry when dealing with possible misconduct. Proper procedure in terms of a hearing must be followed. If the apprentice is found to be negligent, then payment in terms of the damage can be deducted from the employee's wage, with the deduction being no more that 30% of his weekly wage. That can be coupled with a final written warning for the negligence. I would think that dismissal on the first instance would be too harsh.


Would the same apply to the elctrical industry?

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## Dave A

> Would the same apply to the elctrical industry?


I had a hunch...

Yep - I believe so.

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## sterne.law@gmail.com

The liability issue:

The company is responsible
I think ians concern is that the company will claim the damages form the employee.

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## Blurock

I would suggest that in terms of the consumer act the company is responsible. You have contracted the company, not the employee. :Smile:

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## Dave A

> I think ians concern is that the company will claim the damages form the employee.


I suspect "concern" might just as easily be substituted with "interest".

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## dfsa

Interesting situation.

The main thing here is, you took your bike to a supposedly reputable company. They did not have any quality check in place.

Firstly, the CEO/MD of the company is liable (No matter what they have in place, the top person is liable)

They can not do anything to the apprentice as he is in training and should have been supervised. (You paid full rates for a proper qualified person)

The company might discipline a senior manager or the floor supervisor, but again it is up to the top person or owner to ensure the company have proper quality procedures in place.

If the company do not have public liability insurance, then they must pay your damages and any related costs. (You could have lost your life)

This company actually proved that the motor industry is in shambles. They employ people off the street at labor rates and charge top artisan rates, then allow the laborer to replace brakes on your car..

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## ians

I wanted to find out if the company had a claim against the appy, whether or not the company can fire the appy and make him pay for all the damages.

The reason i asked, if it is the same with the electrical industry, just in case i ever have to make one of my staff members pay for damages due to negligance, be it an elconop or artisan.

In the electrical industry the elconops would carry out work according to their level of training but when it comes to important stuff like live electricity, they shouldnt be working on it and all work done by anyone in the company from elconop to artisan must be checked and inspected by a certified inspectors of sorts, be it a single phase tester up to a master electrician who would have been monitoring the progress of the project, before inspecting and signing over the COC

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## dfsa

> I wanted to find out if the company had a claim against the appy, whether or not the company can fire the appy and make him pay for all the damages.
> 
> The reason i asked, if it is the same with the electrical industry, just in case i ever have to make one of my staff members pay for damages due to negligance, be it an elconop or artisan.


There are company's that make employees pay for mistakes or damages, but they purely get away with it because the employee do not know his rights.

You can not make an employee pay for any damages, unless it is traffic fines etc or deliberate action by the employee causing damage.(He smash your door open. Go to the project and deliberately damage something etc. That will then be a criminal case and he might be liable for the damage)

In your case the person to be held liable will be either your master electrician or the person you do your COC. Simple, end of story.

If your elconop or artisan cause damage through negligence ( Very hard to proof), then it is your duty to ensure their training is up to date or even send them for refresher training. If they cause consistent damage, then yes you give them the needed warnings and then you dismiss them. It is that simple, but you can not hold them financially responsible.

It is the company's responsibility to ensure they have the proper Public Liability and Workmanship insurance.

Top management and company owners are always quick to run their employees down, but yet they can not do that work them self nor can they work those physical hours. They also hide their own fu@#$ups and would never take that damage out their own salary, let alone admitting their own @#$?#$.

Ians I would suggest you don't even think in this way. Firstly make 100% sure your people are properly trained (They must be able to do their work closed eyes) The moment they have worked some overtime, they are tired and most probably will make mistakes. 

Most of your employees most probably spend 2-3 Hours to get to work and the same time to get home after work, so therefore their 8,5 Hour shift actually become 14 to 15 Hours. Now they actually do physical work every day for the whole Year and only get 15 Day off per Year. Believe me they are tired and with that come automatic unintentional mistakes that can have high financial implications.

Sit down and think for a moment!! 
How many times do your employees get told to speed up things? 
How many times do you expect them to work extra Hours?
Do you always give them the 100% correct tools to work with? 
Do you even bother to find out how long it take them to get to work, and what do you do about it? 
Can you do that work that you expect them to do and can you stay at same pace with them and never make a !@#$>:

So to really answer your question: If the person makes a mistake, then give him a warning. If he make another one or two, then dismiss him ( Simple he is not suited for your company) After that GOOD LUCK finding another person that is just half capable than the one you dismissed.

Making him pay for a @#$%^ then you must just hope and pray he do not find out a little bit on his actual rights. He actually can take you to the cleaners.

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tec0 (24-Aug-12)

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## ians

I disagree with you , read #5

If an artisan forgets to put an earth wire between the metal of an old installtion and a new plastic extention box, i would regard that as negligence. The more i think about it the more easier it is for me to think of all the things you could prove negligence. Fitting incorrectly sized circuit breakers, not bonding a geyser....etc. The scary part, it could result in a death.

I am not here to argue with anyone, just need the facts.

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## Dave A

I'm still curious about this loss recovery from the employee issue though:




> Making him pay for a @#$%^ then you must just hope and pray he do not find out a little bit on his actual rights. He actually can take you to the cleaners.


Can you point to anything that supports that position?

When it comes to the electrical contracting I concede there's a statutory obligation on the responsible person - so that muddies the waters some and probably a good idea to stay away from the electrical contracting industry when trying to clear this up.

But in a general way where there isn't an industry specific situation like this - can a company recover from an employee the losses incurred due to gross neglicence of that employee?

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## tec0

> Maybe someone can answer this question, 
> 
> Let say i own a motorcycle, and one day i decide to take it in to have the back tyre replaced. I send it in to my local brand name dealer, expecting the best workmanship. 
> 
> First the brake system  must be removed, then the axle, then the chain is lifted off and bingo the wheel is off. They put a new tyre on and off i go, with a smile on my face, however when i take the off ramp and start slowing down i hear a load bang and so other strange noises. Cut a long story short, the brake caliper was not tightened, the bolts came out, the whole brake goes flying off, which meant i had no brakes. 
> 
> Who would be liable for the damages, 
> 
> I would asume that the company would have to pay for everything and should have all types of insurance to cover this type of incident.
> ...


Fact is the company is liable… It is illegal to allow an apprentice to do work on anything without constant supervision of a fully qualified fully trained artisan. The apprentice work must be inspected and sign off by the responsible person at all times. Then a final inspection must be done and it too must be signed by the responsible person.

So the questions are as follow: 

Did they check the apprentice's work before signing of? 
If so why did the trained/responsible person overlooked this potential danger? 
Why was it signed off in the first place? 

The responsible person can do whatever he wants he remains the responsible person and thus accountable for the damages as he had to do inspections. The same is also true when you get your car serviced. 

As far as my knowledge go an apprentice's work must always be inspected. If this was done you wouldn’t have this problem.

If the apprentice is held accountable he can always go and complain at the CCMA and he would find that the company cannot hold him responsible as he is not qualified to begin with and secondly "more importantly" there must be inspections done at all times by the responsible person...

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## ians

There is no grey area when it comes to who is liable between the customer and the company.

The grey area, is the part where the company must recover the cost of the repairs involved, from the apprentice. Is the "apprentice liable" for the cost of the repairs and can the company fire the apprentice, yes or no.

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## dfsa

> I'm still curious about this loss recovery from the employee issue though:
> Can you point to anything that supports that position?



Hi Dave. I suppose you can recover damage from the employee. Now if that employee decide to go to CCMA, with the correct advice, then he will win the case.

Let us do a scenario: You have a warehouse. You employ Tim as the store supervisor and Ken as the crate loader and Doug as the crating guy.

You receive a big order to be picked, crated and loaded for shipping. Your goods are breakable, extremely heavy & damn expensive.

You also made the guys sign a contract when you employed them:: "You break it you pay for it"

Long story short. The one crate slipped off the stacker/loader and fall on the ground. All components inside are damaged and broken. 

Value of goods: R40 000 -00

You run to the dispatch aria and eventually decide all three these guys are responsible and they must pay for the damage.
You then start deducting 35% off their wage every Month. Forgetting about the fact That they earn R2 500-00, R3 000-00 & R5 000-00 respectively.

Tim did do a supervisor course. Ken do have his Stacker license. Doug did do a crating course.
If with the right representation they do go to CCMA, the company is actually screwed.

Just some pointers that will stuck:
1) What specific top training did you give them and how many times per annum do you do refresher training.
2)The department manager with all the needed diploma's training etc. Why did he not pick up on any faults these guys might have.
3) The department manager and top management see this team working on a daily basis. Yet they were blind to pick up any possible incident.
4) When a order need to be dispatch. Do every process from packing to crating to loading consist of a 100% step by step check list and then signed off.
5)The goods are heavy. What safety procedure check list is in place to ensure safe picking, crating & loading?
6)Why do the company not have the needed insurances? After all they do have insurances once the goods is on the truck and in the shipping process. (Ahha the shipping company do not take responsibility for any damages.)


I can carry on here with 50+ more points. The thing is the company will not be able to truly answer 20% of the points. 

Worst case scenario: Employees can now argue that the relationship with employer has broken down and they will get victimized. 

Ruling: Employer pay back any deducted money with interest, any representation costs the employees have and 2 Year wage package.

It can also then be requested that the HS visit the company. This can result in 100ds of Thousand to the company.



The explanation that Tec0 gave below is good and clear. 




> Fact is the company is liable… It is illegal to allow an apprentice to do work on anything without constant supervision of a fully qualified fully trained artisan. The apprentice work must be inspected and sign off by the responsible person at all times. Then a final inspection must be done and it too must be signed by the responsible person.
> 
> So the questions are as follow: 
> 
> Did they check the apprentice's work before signing of? 
> If so why did the trained/responsible person overlooked this potential danger? 
> Why was it signed off in the first place? 
> 
> The responsible person can do whatever he wants he remains the responsible person and thus accountable for the damages as he had to do inspections. The same is also true when you get your car serviced. 
> ...







> The grey area, is the part where the company must recover the cost of the repairs involved, from the apprentice. Is the "apprentice liable" for the cost of the repairs and can the company fire the apprentice, yes or no.


Ians, I think it should be clear now that you can not hold the apprentice financially liable, unless he is guilty of "Deliberate Negligence" Yes you can take disciplinary action against him. Just make sure you have your facts right. The guy is an apprentice!! At CCMA in my view your company will have virtually no legs to stand on. There are simply too many points that you would not be able to defend. Barring he have no representation at The CCMA.

My suggestion as I stated before. The company must just get Workmanship insurance.

Ians I am not sure if this is your personal company or whether you are the manager representing the company, but I sense you have a personal problem with this apprentice. You must please take advice and always ensure you are 110% impartial. Your company have other employees and believe me their eyes are open. You take action on this guy, then that will be your level to be maintained for the future. Tomorrow your top class employee make a similar #$%^ then you have to treat and punish him exactly the same. That go for yourself too. Employees are bastards and they normally know how to play the victimization game.

If anybody ever suggest to you to do constructed dismissal, then run and stay away from it. It can cost the company a fortune if they end up in a case like that.







> I disagree with you , read #5
> 
> If an artisan forgets to put an earth wire between the metal of an old installtion and a new plastic extention box, i would regard that as negligence. The more i think about it the more easier it is for me to think of all the things you could prove negligence. Fitting incorrectly sized circuit breakers, not bonding a geyser....etc. The scary part, it could result in a death.
> 
> I am not here to argue with anyone, just need the facts.


We do not argue with you Mate. Your situation above: Are this guy a true qualified artisan or is he just a elconop with some good time spend in the industry.

It do not really matter, what do matter is what steps do you and the company take to ensure this type of thing do not happen? Something simple like a step by step check list can avoid 99% of such problems. 

You situation above regarding the plastic extension box, the incorrect circuit breakers ( This person is not a design engineer) Did you give him a full scope of the work with drawings and CB ratings per circuit, cable size, what size wire to use on looping supply's to the Cb's? And to top it all, did you give him a job specific scoped check list?

Sorry Mate, if you did not do the above, then you are hanging dry. You sending people blind into jobs, then you do not do a point to point check yourself or have your Manager do it. You don't seem to have a QI appointed on your projects.

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tec0 (24-Aug-12)

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## Justloadit

and this is why we have so much unemployment, and will continue with large numbers of unemployment.

It is always the employers fault.......

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## tec0

> There is no grey area when it comes to who is liable between the customer and the company.
> 
> The grey area, is the part where the company must recover the cost of the repairs involved, from the apprentice. Is the "apprentice liable" for the cost of the repairs and can the company fire the apprentice, yes or no.


Basically we cannot say yes or no because we dont know all the facts. However I would also recommend seeking professional help. That said an apprentice is well protected by the CCMA and you need all your facts to be 110% as stated above. The second truth was also mentioned by dfsa, if you fire this person you will need to fire the next person that did the same thing. Fact is if you didnt fire a previous employee for the same and or similar mistake you can face being accused of victimization and then it is all new ball game and a very problematic one at that.  :Yikes: 

Sorry I know you expected more but the truth is as it stands. First truth is you need to work through the CCMA secondly an apprentice "normally" isn't protected by a union thus they enjoy the full protection of the CCMA.

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## dfsa

> and this is why we have so much unemployment, and will continue with large numbers of unemployment.
> 
> It is always the employers fault.......


No disrespect Justloadit, but statements and an outlook like that is the exact reason we have a untrained work force. Unemployment has nothing to do with the fact "It is always the employers fault"

Why do companies employ people? I can guarantee you they do not do it to get rid of unemployment,no Sir! They do it to make money and their pure goal is to make as much as they can with as low a cost as possible.

Now they employ people that are not properly trained for the job, because the cost/wage is low. If they employ properly trained people their cost go through the roof, as they now have to pay proper rates according to qualification. They also do nothing in their respective industries to train people as again it cost money.

Not long ago virtually all companies in the engineering & building industry had consistent apprentice ships running. We are talking here of thousands per Year. Starting with new intakes every six Months or at least every Year. Even small companies had 2-3 at any given time. These Days nobody have apprentices. In fact there are no real true apprenticeship program running that I know of. It is all just learner ship programs where the company purely train the person on a limited basis to suit the company environment.

The same go for any other industry, they send people to so-called training sessions ( Load of crap) and then expect them to know everything.

The government is also not doing the economy any favors either. They should bring COT back and force companies to do proper training. Give companies a rating like the BEE rating system work. If they do not comply, then they simply do not qualify to tender. 

The statement you made above is typical of what is happening throughout the country. That is the mentality that people walk around with, yet nobody do some sort of effort to make a difference.

If the company owner is the ultimate perfect person, I would not have a problem if he punish the employee. It is proven over and over that top management and company owners are causing the most damage to their companies.

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tec0 (24-Aug-12)

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## Dave A

:Hmmm:  I have to say that's not exactly the hard evidence of an absolute right that precludes recovering losses from the employee that I was looking for.

I'm happy to concede that such an action must be substantively fair.
I'm happy to concede the company must have taken all reasonable steps to mitigate the risk that led to the loss.
I'm happy to concede that such an action might be aggressively interrogated at the CCMA.
I'm happy to concede pursuing such an action might at times not be practical, or wise.

However, I remain unconvinced that it is not permissable under any circumstances at all.

My recommendation to any company contemplating doing so though is first ask yourself is there anything the company should have done that was not done to prevent this loss from happening?
Are your policies on the issue clear and have you been applying them consistently?

I'd also suggest you step back and take a holistic view. 

Is such a step in the best interests of the company?
Is the cost going to be higher than the recovery? (Not only in monetary terms, but in terms of the employer / employee relationship).
Is it a cost that should really be considered part of the risk inherent in being in your line of business.

I'll say from my experience, most often the best course is taking the nescessary steps to reduce the prospects of a re-occurence, be that retraining, redefining, refining, warning or dismissal.

And realistically that is the road most often taken.

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tec0 (25-Aug-12)

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## ians

For the record, this is an actual case just not for a motor bike, I cannot go into too much detail because the company is a well known company and i dont have all the facts.

The apprentice is still employed, and has been given a final warning, and has been instructed to pay for all the damages, including the towing of the vehicle.

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## tec0

> For the record, this is an actual case just not for a motor bike, I cannot go into too much detail because the company is a well known company and i dont have all the facts.
> 
> The apprentice is still employed, and has been given a final warning, and *has been instructed to pay for all the damages*, including the towing of the vehicle.



****edit****

Here are the facts as I see them 

Fact one: He still works for the company now if he was deliberately messing up after the inspections were done he would have been criminally charged and dismissed. 

Fact two: He is still working and must pay for the damages… Where is the insurance? Where is the procedures? Where is the checklists? Where is the responsible person?  Was the CCMA involved? 

Fact three: He is paying that suggest that a lot of things didn’t happen and herein is my problem. 

Now how I feel is irrelevant but condoning this… I am sorry I can't…  :No:

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dfsa (25-Aug-12)

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