Article 11/2022

What is the content of the common law duty of the employer to take reasonable care of its employees?


It is well-established that there is a common law duty of reasonable care on an employer in respect of its employees (e.g. Van Deventer v Workmen’s Compensation Commissioner 1962 (4) SA 28 (T), Vigario v Afrox Ltd 1996 (3) SA 450 (W) and Media 24 Ltd and Another v Grobler 2005 (6) SA 328 (SCA)).

The above obligation to take reasonable care exists in respect of protecting employees against physical harm as well as protecting employees against psychological harm.

Employees have available to them both statutory and common law remedies.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.