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.

[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.

[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.

[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).

[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.

[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.

[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?

[Dave A]

Would the same apply to the elctrical industry?

I had a hunch...

Yep - I believe so.

[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.

[Blurock]

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

[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".

[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..

[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

[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.

[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.