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Article 27/2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?

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  • It is well-established that a statutory claim based upon an automatically unfair dismissal is to be dealt with in terms of s187(1)(f) of the LRA – it is equally well-established that a statutory constructive dismissal claim is to be dealt with in terms of s186(1)(e) of the LRA.
  • Likewise, it is well-established that a statutory unfair discrimination claim is to be dealt with in terms of s6(3) of the EEA.
  • What are the alternative civil claims that exist in delict as to the above three statutory claims?

There are two claims grounded in delict covering both patrimonial and sentimental damages:

  • the first claim is the actio legis aquiliae – this claim covers the negligent (culpa) or intentional (dolus) and wrongful causing of patrimonial (pecuniary) damages
  • the second claim is the actio iniuriarum – this claim covers the intentional (dolus animus iniuriandi) infringement of the interest of personality – i e instituted for the recovery of sentimental damages (solatium)
  • in respect of both the aforesaid delictual claims, the claimant is entitled to damages to the extent that such damages have been proven

It is also well-established that an aggrieved employee, in the above circumstances, is entitled to institute action based on both statutory and delictual causes.

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?