On 14 July 2017 and following wage negotiations, which took place nationally at the bargaining council, the employer informed employees of the wage increase for that year.
Unhappy with the increase, 148 of National Union of Metalworkers of South Africa (NUMSA) members embarked on an unprotected strike demanding to meet with the employer’s head of human resources.
When the head of human resources did not arrive at the canteen, the employees marched to his office, singing, and holding up placards which read, ‘away with Ferdi, we want 15%’.
On exiting the building to meet the striking employees; the head of human resources was severely assaulted. He was kicked, punched, and pushed through a glass window.
A disciplinary hearing against all 148 of the employees, took place during July to August 2017. The employees were charged with embarking on unprotected strike action and assaulting a fellow employee. Pursuant to being found guilty of both counts, all 148 employees were dismissed.
Twelve of the employees were found to have been directly involved in the assault while the remaining employees, on application of the doctrine of common purpose, were found guilty of the same charge.
NUMSA, acting on behalf of all the dismissed employees, referred a matter to the Metal and Engineering Industries Bargaining Council (MEIBC) and once conciliation failed, lodged a statement of claim at the Labour Court (LC).
In court, NUMSA’s defence was that there was no strike nor was anyone assaulted.
The court, through documents, video footage and photos; found 12 employees actively engaged in the assault, while 95 were on the scene and actively associated themselves with the assault. Despite 41 employees not being at the scene, the court, on application of the doctrine of common purpose, nevertheless found them guilty of assault.
NUMSA appealed the decision only in respect of the 41 employees who were not at the scene when the assault took place. The appeal failed with the Labour Appeal Court (LAC) having found:
In dismissing the appeal, the LAC held:
‘From the evidence before the Labour Court, it is clear that the appellant employees associated with the actions of the group before, during or after the misconduct. This included Mr Mokoena who, although he arrived on the scene after the assault, through his conduct associated directly with the actions of the group. It also included the employees who, in [the opinion of Ms Crowie, were] … bystanders. There was no dispute that these employees were present at the scene and associated with the events of the day. They too took no steps to distance themselves from the misconduct either at the time of, during or after the assault. Instead, they persisted with the denial, both in their pleaded case and the evidence of Mr Ledwaba, that any assault had occurred and refused the opportunity to explain their own conduct in relation to it.’
On appeal to the Constitutional Court (CC), NUMSA argued that the LAC incorrectly applied the doctrine of common purpose in respect of the 41 employees.
The CC began by firstly reiterating the point, that in applying the doctrine of common purpose, an employee can be found guilty of misconduct, if they actively associate themselves with the misconduct either before, during or after the act.
In this case, even if one accepts the 40 employees were on the scene when the assault took place, there was no proof that they actively associated themselves with the assault. The CC questioned the basis on which the LAC found that for an employee to disassociate themselves with the assault, they were required to intervene in an attempt to stop the assault. While there may have been a moral obligation to intervene, there was certainly no legal obligation to do so. The CC further held that the mere presence of an employee, at the scene of the misconduct, does not in itself attract liability. The obligation to disassociate oneself from an act of misconduct does not arise if there is no proof, on a balance of probabilities, that one firstly associated themselves with the misconduct.
The fact that the 40 employees marched from the canteen to the admin building, held placards and were present when the assault occurred did not establish that they actively associated themselves with the assault. There was no evidence that the assault was planned and may well have been spontaneous. Thereby, there existed the possibility that the 40 employees did not anticipate the assault and were mere bystanders when the assault occurred.
In respect of one of the dismissed employees, it was common cause he arrived at work after the assault had occurred. The court found that there was no evidence that he associated himself with the assault after it had taken place.
The employer relied on the judgment in Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty) Ltd and Another [2022] 6 BLLR 487 (CC), wherein the CC held:
‘Two important principles can be distilled from this court’s jurisprudence … . First, mere participation in a strike, protest, or assembly, in which there is unlawful conduct, is insufficient to link the impugned respondent to the unlawful conduct in the manner required for interdictory relief to be granted. Second, the necessary link can however be established where the protesters or strikers commit the impugned unlawful conduct as a cohesive group. Whether this is established will, of course, turn on the particular facts of the case. Where, for instance, unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct, to escape the inference that it is reasonably apprehended that they will cause injury to the applicant.’
In distinguishing the present matter from that of Oak Valley Estates, the CC held:
‘Oak Valley Estates is distinguishable. It concerns interdicts, not termination of employment on the basis of common purpose. The issue in that case was whether an employer faced with unlawful conduct committed during a protected strike can obtain an interdict against employees participating in that strike without linking each employee to the unlawful conduct. As the second principle quoted from the case shows, in certain circumstances a “link” may consist in merely being within a cohesive group committing acts of violence at the workplace without the individual concerned being actually linked to the violence. Failure by an individual employee to, so to speak, walk away from the guilty cohesive group may result in an employer being entitled to obtain an interdict against that employee without her or him specifically being linked to the acts. Also, an interdict is distinguishable because – although it may concern conduct that is already taking place – it is often concerned with future conduct. It may not be necessary to obtain an interdict against an employee who has readily undertaken not to participate in any future unlawful action. Where there is no such undertaking, an interdict is usually warranted. Past conduct founding disciplinary action is on a different footing.
On the other hand, it would definitely be a non-starter to suggest that an employee could be dismissed on the basis that – through common purpose – she or he was “involved” in acts of violence without linking that employee to those acts. A verdict of guilt cannot appropriately be returned for merely being where the acts of violence took place. An employee could simply have been there as a spectator, or the acts could have happened so spontaneously or suddenly that the employee could not avoid being there.’
The CC found that the 41 employees were not guilty of assaulting the head of human resources and, on the basis that all 41 were found guilty of embarking on an unprotected strike; remitted the matter to the LC to decide on a sanction afresh.
Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).
This article was first published in De Rebus in 2022 (Nov) DR 36.
