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.

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.