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?
_____________________________________
- 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.
