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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.

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

What is the difference between desertion and abscondment?

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?