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Article 51/2025

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?
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  1. A statutory automatically unfair dismissal cause of action exists in terms of s187(1)(f) of the LRA. A statutory cause of action, based upon a constructive dismissal, exists in terms of s186(1)(e) of the LRA. A statutory unfair discrimination cause of action exists in terms of s6(3) of the EEA.
  2. What are the alternative civil claims that exist in delict?
  3. The first claim is based on the actio legis aquiliae – negligent (culpa), or intentional (dolus) and wrongful causing of patrimonial damage (pecuniary damage) is covered in this action.
  4. An alternative or simultaneous claim may also be based on the actio iniuriarum – the intentional (dolus animus iniuriandi) infringement of the interest of personality is covered by means of this cause of action and is instituted to recover sentimental damages (solatium).
  5. Under both the aforesaid actions, the claimant would be entitled to damages, if successful, to the extent proven.

See, in general, Erasmus v Dr Beyers Naude Local Municipality (2021) 42 ILJ 1545 (ECG), (2021) 32 SALLR 6 (ECG).

September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.