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Article 23/2023

Delictual claims may be instituted by an employee as an alternative, or in conjunction with various statutory claims. How do these civil claims, based on delict, fit into the following scenarios:

  • an automatically unfair dismissal in terms of s187(1)(f) of the LRA
  • a constructive dismissal in terms of s186(1)(e) of the LRA or
  • unfair discrimination in terms of s6(3) of the EEA?

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  • A civil claim, based on delict, may be instituted by an employee as an alternative claim to the
    aforesaid statutory claims, or in conjunction therewith
  • The first potential delictual claim is to be based on the actio legis aquiliae – this entails that, if the employer negligently or intentionally and wrongfully caused patrimonial (pecuniary) damage to the employee in the aforesaid statutory environment, then the employee, in addition or alternatively to the statutory claims, has access to such a delictual claim
  • Alternatively, and in addition to a claim based on the actio legis aquiliae, the employee may also have a second potential delictual claim based on the actio iniuriarum – if the employer intentionally (dolus animus injuriandi) infringed the interest of personality of the employee, the employee will also be able to recover sentimental damages (solatium)
  • In respect of both the actio legis aquiliae and the actio iniuriarum, the amount of damages that the employee would be entitled to is based on the proven damages

(see, further, Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG)

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?