Readers, you need to know that all of the things committed by subordinate are all being commanded and lead on behalf of the company. I will prove to you in this post, on how this individual actually doesn’t have the intention to commit such kind of crime and they couldn’t prevent it to be happening under the ground.
So what do I need to discuss in this post?
Firstly, I am going to highlight the urgency of accepting vicarious liability in employment like in the status quo because this can provide mechanism for all employee to speak up against the dictatorship. We’re supposed to accept this scenario : that whenever an employee is called to the trial and trying to defends it using this term, it is going to be acceptable. I’d like to ensure that those people are protected from any unfair justice system that will likely to be happened during court process against the employee. I’d like to ensure that leaders are really wrong by conducting full investigation toward all the party in order to invite a communal evaluation for every people and to prove who should held responsible for all of actions happened during the quo.
Before going further on my explanation, let us discuss the definition of vicarious liability itself.
What is Vicarious Liability?
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.
According to Cambridge Law Press Journal, The doctrine of vicarious liability lies at the heart of all common law systems of tort law. It represents not a tort, but a rule of responsibility which renders the defendant liable for the torts committed by another. The classic example is that of employer and employee: the employer is rendered strictly liable for the torts of his employees, provided that they are committed in the course of the tortfeasor’s employment. In such circumstances, liability is imposed on the employer, not because of his own wrongful act, but due to his relationship with the tortfeasor
The key question of any case of vicarious liability is whether the sub ordinate 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 organization – as the law stands, action can still be taken against an employer even though the person in question no longer works for them.
Thus, vicarious liability requires two elements: (1) the right and ability to supervise or control the infringing activity; and (2) a direct financial benefit from that activity. It is closely related to the doctrines of enterprise liability and respondent superior in tort law.
In Indonesia’s legal realm, this so called vicarious liability is not an unfamiliar concept, as it has regulated for more than a hundred of years in our civil code. Article 1367 state as follow:
“An individual shall be responsible for the damage which he has caused by his own act, as well as for that which was caused by the acts of the individuals for whom he is responsible, or caused by matters which are under his supervision. (S.27-31 jis. 390, 421) Parents or guardians shall be responsible for the damage caused by minor children who live with them and over whom they exercise parental authority or guardianship. Employers and those who have been assigned to manage affairs of other individuals shall be responsible for the damage caused by their servants and subordinates in the course of duties assigned to them. Teachers and work supervisor shall be responsible for the damage caused by their students and apprentices, during the period that they are under their supervision. (S.27-31 jis. 390, 421). The above-mentioned responsibility shall cease, if the parents, guardians, school teachers and work supervisor can prove that the act, for which they could be held responsible, could not have been prevented.
There are three main issues that I’d like to address in this post.
Number 1, who have the duty mitigate the loss of the victim since victim currently was unable to utilize their land or property anymore because company’s act that attack them so bad. Exactly, the one who should held responsible is the company. The justification lies under UU no. 23 of the 1997 on Pengelolaan Lingkungan, if company fails to maintain its operation that results damages to environment, they are being force to pay all damages, and injuries.
In examining the role of vicarious liability in these post-industrialised States, a number of points should be noted. First, it is important to clarify the question of terminology. The term ‘vicarious liability’ derives from the common law, and civilian systems will generally refer to ‘liability for the acts of others’. This latter term is, however, more inclusive and will extend to strict liability in both contract and tort, and even liability for actions not amounting to torts.
Second issues is what if someday the defendants decide to declare bankruptcy in order to avoid paying for the damage any further, and the curator later find that there is simply not enough fund or capital for them to fulfill their obligations to both creditors and the victim, at that time who will we appoint our finger to?
Subsequently the question what was the cause of the damages in the first place became relevant. Will someday we find that defendants is solely responsible for all the damages? Either intentional nor negligence, at that time, we have to see did the board of directors with all their power, and discretion to run the company has fulfill their duty of care and skill to prevent such event from happening in the first place. In other word did they have conducted breach of their fiduciary duty to the company, and shareholders, because their mismanagement of the company has resulted in the bankruptcy of defendants, so although PT as a legal entity will prevent the board of directors to be personally liable in the face of the law, but for the breach of their fiduciary duty to the company will cause the piercing of the corporate veil doctrine to be in effect, as it regulated in Article 90 paragraph (2) of the Law No. 1 of the year 1995 on Perseroan Terbatas. I don’t think there is any business judgment rule aspect in this case, because of course; such mud problem is not in the best interest of the company.
There is a few catch though; first, sometimes it will not be possible for victims to identify the employee who has committed a wrong. A regime of purely personal liability will not provide sufficient deterrence for employees who recognize that they may escape liability because prospective plaintiffs will find them difficult to identify. Vicarious liability will improve deterrence in this respect so long as employers have some means of influencing the elusive class of employees.
A second reason personal liability may not provide adequate deterrence is that employees tend to have limited wealth. This creates two potential problems. First, employees’ wealth may be less than plaintiffs’ expected litigation costs. In those cases it will not be worth any victim’s while to sue an employee. A second problem arises even if employees are worth suing: an employee’s wealth may be greater than a victim’s expected litigation costs but less than the amount of money required to compensate the victim for the harm caused by the employee’s wrongful action. A third reason personal liability may provide inadequate deterrence is that individuals may not respond rationally to the prospect of liability.
Obviously as the aforementioned facts, accepting vicarious liability will increase more transparent and fair justice system. The defendants should held responsible for all of actions omitted by his/her subordinate.