“Dismissal of employees for participation in an assault, without being identified”
Case discussed: NUMSA obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30
On Monday, 22 August 2022, the Constitutional Court handed down judgment in an application for leave to appeal by NUMSA, the applicant in the matter. The Court heard an appeal from the Labour Court regarding the dismissal of 41 employees of Marley Pipes Systems (SA) (Pty) Limited, the respondent, for the assault of another employee and participation in an unprotected strike. On the assault charge, the finding of guilt was based on common purpose.
The Labour Court had to assess if 148 employees of the respondent acted with common purpose when they assaulted the respondent’s head of human resources.
After a disciplinary process that took place during July to August 2017, the respondent dismissed 148 employees. An independent chairperson found the employees guilty of two counts of misconduct.
One was the assault of the head of human resources, Mr Steffens and the other was participation in the unprotected strike. One hundred and thirty-six of the employees were convicted of assault on the basis of the doctrine of common purpose. The other 12 were found to have been involved in the actual physical assault of Mr Steffens. The respondent dismissed all 148 employees pursuant to a recommendation to that effect by the chairperson. Aggrieved by their dismissals, the employees, represented by NUMSA, referred an unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council. After conciliation failed, a claim of unfair dismissal was referred to the Labour Court.
At the Labour Court the employees pleaded that no assault or unprotected strike took place. Based on that, they contended that the dismissals were unfair. The respondent filed a counterclaim for just and equitable compensation in terms of section 68(1)(b) of the Labour Relations Act 66 of 1995 for losses incurred as a result of the unprotected strike, and, in the alternative, damages. The Labour Court was satisfied that the employees were guilty of misconduct. It upheld the dismissals and awarded damages. NUMSA appealed to the Labour Appeal Court on behalf of only 41 of the 148 employees. The appeal was unsuccessful. The Labour Appeal Court ruled that common purpose had been established because none of the 41 employees had “intervened to stop the assault” and should have “dissociated themselves in [some] way from the assault before, during or after it” so as to escape liability.
The Constitutional Court found that only 12 of the 148 employees were identified to have engaged in the actual physical assault of the head of human resources wherein another 95 employees were placed on the scene by the one or other form of evidence referred to above. That leaves the 41 unidentified employees.
Before the Constitutional Court, NUMSA argued that the dismissals were substantively unfair. In a unanimous judgment, the Constitutional Court took issue with the Labour Appeal Court’s conclusion that the employees had not dissociated themselves from the assault. It held that mere presence and watching does not satisfy the requirements set out in in its earlier judgment on Dunlop, where 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. There must be evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended. The person concerned 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 other. Thus, employees cannot be required to intervene to stop the misconduct or dissociate themselves in some way from the misconduct when they never associated in the first place. The court further held that individual complicity in the commission of acts of violence must be established. If it were to be otherwise, the law would be a cruel instrument that attaches guilt and imposes sanction on the innocent. Association in complicity for purposes of common purpose must include having “the necessary intention” in relation to the complicity.
Conclusion
Consequently, the Constitutional Court set aside both the judgments of the Labour Court and Labour Appeal Court and remitted the matter back to the Labour Court to consider a sanction afresh on the charge of participation in an unprotected strike. The Constitutional Court restated the rules on proof of common purpose.
