The law of vicarious liability allows for the imposition of legal responsibility on some person or organization for the illegal or tortious conduct of someone (1) who stands in a special legal relationship with that person or organization, such as an employee; and (2) where that employee commits the illegal or tortious act under special legal circumstances, such as during the course of his employment and not while he is “on a frolic of his own.” In legal parlance, we may call the employee the primary defendant (or D1) and the employer the secondary defendant (or D2). Legal practitioners, for obvious reasons, are more interested in suing the employer than the employee. However, the jurisprudent or law teacher would usually have wider and deeper concerns. For instance, the jurisprudent or law teacher, and consequently law students, may be concerned as to whether the underlying rationale for the principle of vicarious liability is justified, philosophically, in terms of morality and fairness. In other words, since the primary justification for imposing liability in tort, for instance, is based on some degree of fault, ie, the negligent or intentional conduct of the wrongdoer (or tortfeasor), how can it be justified philosophically for the law to impose liability on an employer who is without fault in terms of the commission of the specific tort. It is quite another thing if the employer has acted negligently in employing an incompetent employee , or where the employer fails to properly supervise, or never supervises, the employee in question. Or where the employer deliberately instructs the employee to do something illegal. Or where the employer knowingly or negligently condones an illegal act done by its/his employee. Note here, that ‘wilful blindness’ or ‘wilful ignorance’ is no defence.
In this regard, I am wondering who is responsible for supervising the top administrative officials of UG, such as the Vice-Chancellor, the Deputy Vice-Chancellor and the Registrar. It should be the UG Council, but this body seldom meets. So one can safely conclude that these three officials are basically not supervised on a regular basis. So, how can one get internal redress on urgent matters involving these extraordinarily powerful officials of UG, particularly the Vice-Chancellor and the Registrar. You may wonder why I include the Registrar in this powerful group. After all, the UG Acts and Statutes classifies his functions as being merely ‘registerial,’ except where he is assigned additional functions by the UG Council – note, not by the Vice-Chancellor, mind you. So how did the Registrar get so powerful? Through something my political science teacher, Mr Chandisingh, a wonderful teacher, called “referent power.” I have never been quite sure whether he had invented this term or its definition or both. However, the sense I got from the term was that it referred to a person who is seen as embodying enormous personal power over and above his or her formal or actual legal authority. I have been wondering recently, for instance, how the Registry’s function in the very important admissions’ process changed from “verify” to “approve”?
Theoretically, if you have a problem with the Registrar or the Deputy Vice-Chancellor, you should be able to go to the Vice-Chancellor. But ‘generals’ or ‘maximum leaders’ seldom go against their ‘right-hand’ persons. But wait, we have the UG Council – but the next time they meet your contract may have come to an end.
So, you are forced to take your matters to court, if you can afford it. How does that help? We all know the answer to that. If it is true that ‘justice delayed is justice denied,’ then injustice is rampant in Guyana on this ground alone. I do believe that the Guyana Bar Association needs to be more aggressive on this issue.
So we are left with that great bastion of ‘referent’ justice – the public media! It is performing the noble function of being the ‘soul of justice.’ In addition, it is cheap and quick. But I still have a moral dilemma as to who to blame. If the employer or organization is totally without fault, then I personally will not sue or blame that person or organization. If the employee alone is at fault, I will sue that person alone in order to make a strong moral point. Moreover, I do believe that this could be one of the best spurs to organizational and individual efficiency.
UG Law Department