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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)

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?