A recent case dealt with whether an employee can be dismissed for participating in an assault without being identified.
Faan Coetzee, an employment law expert at Cliffe Dekker Hofmeyr, said that the Constitutional Court ruled that an employee cannot be dismissed for participating in an assault in that they were not identified.
He said the Constitutional Court ruled that an employee’s failure to give an explanation or dissociate themselves from an assault in the workplace does not equal complicity, as employees may choose silence for fear of being ostracised.
The point at which an employee is obligated to intervene and stop an assault or dissociate themselves in some way was also unknown. Coetzee added that if there is no evidence that an employee is associated with the perpetrators of a crime – they are not guilty.
Facts
In Numsa obo Aubrey Dhludhlu & Others and Marley Pipe Systems, the court had to assess if 148 employees of the Employer acted with a common purpose when they assaulted the head of human resources.
“The employer argued that all the employees directed their disgruntlement in the form of a heinous crime; those that were able to confront the head of human resources in person, physically assaulted him, and those that could not – incited the others to assault him and rejoiced at the outcome,” said Coetzee.
According to the (Labour Court (LC), the employees who were identified as being on-site had acted with a common purpose in associating themselves with events on the day.
The Labour Court referred to the matter of Numsa obo Nganezi and Others v Dunlop Mixing and Technical Services Limited and Others (Dunlop) for more clarification on the court’s reasoning.
In Dunlop, it was held that it was unnecessary to place each employee on the scene to prove common purpose, as this could be established by inferential reasoning having regard to the conduct of the employees before, during and after the incident of violence, said Coetzee.
After the LC ruling, Numsa was unhappy and took the matter on appeal. The Labour Appeal Court (LAC) had to determine whether 41 of the 148 dismissed employees, who had not been identified by either photographs or video evidence as having been on the scene when the assault had taken place, could have been associated with the assault.
The LAC found that the LC was correct in its finding that the 41 unidentified employees had acted with a common purpose. The former said it was clear that all the employees, including the 41 unidentified employees, were associated with the actions of the group before, during, and after the misconduct.
“The 41 unidentified employees further took no steps to distance themselves from the misconduct either at the time of, during or after the assault but instead, they persisted with the denial that any assault had occurred and refused the opportunity to explain their own conduct in relation to it,” said Coetzee.
Once again, unhappy with the outcome of the LAC, the union referred the matter to the Constitutional Court.
Final verdict
Regarding the 41 unidentified employees, the Constitutional Court accepted the LAC’s finding that the probability is that the unidentified employees were at the scene when the head of human resources was assaulted, however by not having been identified, they were never seen doing anything, said Coetzee.
The Constitutional Court further held that the LAC never explained on what basis employees are obligated to intervene and stop the assault or dissociate themselves in some way from the assault.
“As such, the mere presence and watching of the assault do not satisfy the requirements set by Dunlop as there must be evidence, direct or circumstantial, that the individual employees in some form associated themselves with the assault.”
The individual employees further must have manifested their sharing of a common purpose with the perpetrators of the assault by themselves performing some act of association with the conduct of the others. As there was no evidence of such association, the Constitutional Court found that the 41 unidentified employees were not guilty of the assault on the head of human resources.
- Commentary: Faan Coetzee, an employment law expert at Cliffe Dekker Hofmeyr.
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