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Article 25/2024

LabourEdge

It is well-established that an employee has available to him/her various statutory causes of action dealing with alleged conduct of an employer.  What is also quite clear is that, in addition to and/or alternatively to the above, the employee can also institute a delictual claim.  

Under what circumstances are such delictual claims possible causes of action and what are the fundamental principles governing same?

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  • The viewpoint is held that such alternative delictual claim is possible in, at least, the following three circumstances, namely:
    • automatically unfair dismissals in terms of s187(1)(f) of the LRA
    • constructive dismissals in terms of s186(1)(e) of the LRA
    • unfair discrimination in terms of s6(3) of the EEA
  • The actio legis aquiliae should be utilised for the claiming of patrimonial damage – it is applicable where the employer intentionally or negligently, and also wrongfully, caused the employee patrimonial damage.
  • Furthermore, the employee has available to him/her the actio iniuriarum – where the employer intentionally (dolus animus iniuriandi) infringed the employee’s interest of personality, the employee will be able to recover sentimental damages as a solatium.
  • Erasmus v Dr Beyers Naude Local Municipality and Jack (2021) 32 SALLR 6 (ECG); (2021) 42 ILJ 1545 (ECG) is a good example of such delictual claim within a sexual harassment environment.
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)?