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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).

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)?