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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.

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?