Article 25/2024

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 are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?