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.
