Employment law update – ‘Mob attack’ – doctrine of common purpose applied during strike action

November 1st, 2021
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In National Union of Metalworkers of South Africa obo Dhludhlu and Others v Marley Pipe Systems SA (Pty) Ltd [2021] 9 BLLR 894 (LAC), employees engaged in a work stoppage pursuant to Marley Pipe Systems SA (the employer) tabling certain wage increases. Shortly thereafter, a wage agreement was concluded, to which the National Union of Metalworkers of South Africa (NUMSA) was not a party. Consequently, the employees who were members of NUMSA (the employees) engaged in an unprotected strike. The employees moved from their workstations carrying placards and demanding the removal of the employer’s Head of Resources, Mr Steffens.

When attempting to engage with the employees, Mr Steffens was seriously assaulted. He was pushed out of a glass window, had rocks thrown at him and was punched and kicked while lying on the ground. Having sustained significant injuries, Mr Steffens was taken off the premises to obtain medical attention. The employees only left the premises after being issued with an ultimatum by the employer to do so. The same day, the employer obtained an order from the Labour Court (LC) interdicting the strike and prohibiting further acts of violence, intimidation, and harassment.

Following the assault, the employees were provided with an opportunity to furnish information to the employer indicating whether they had participated in the misconduct. Those employees who provided an acceptable explanation were not subject to disciplinary action, however, 148 employees were disciplined and subsequently dismissed for participating in the strike and acting with common purpose in the assault of Mr Steffens.

Aggrieved with their dismissals, the employees, represented by NUMSA, referred an unfair dismissal dispute to the LC. The employer opposed the claim and filed a counterclaim in which it sought compensation, alternatively damages, for the losses it incurred by as a result of the strike.

The evidence before the LC demonstrated that –

  • all the employees had taken part in the unprotected strike, had marched on the employer’s premises and carried placards demanding the removal of Mr Steffens;
  • 12 of the employees had been directly identified as having participated in the assault of Mr Steffens;
  • a further 95 employees had been identified via photographs and video evidence as having been on the scene; and
  • the remaining 41 employees were found to have been associated with the unprotected strike and the assault.

The LC held that the employees had acted with common purpose in the assault of Mr Steffens in what was a ‘mob attack’. The employees had failed to use the opportunities provided by the employer to distance themselves from the events on the day and accordingly their dismissals were fair. The employer’s counterclaim for damages was upheld and NUMSA was ordered to pay compensation in the amount of approximately R 829 835 to the employer.

NUMSA took the matter on appeal in respect of the remaining 41 employees and contended that common purpose in the assault had not been proved in respect of these employees. The employer persisted that the finding of common purpose was sustainable against the 41 employees as they had been placed on the scene of the assault through clocking records and were absent from their workstations.

The Labour Appeal Court (LAC) noted that the difficulties inherent in determining the individual culpability of an employee in the context of collective misconduct were considered by the Constitutional Court in National Union of Metalworkers of South Africa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as amicus curiae) [2019] 9 BLLR 865 (CC). In that matter, the court stated that evidence, whether direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended, may be sufficient to establish complicity in the misconduct. An employee is accordingly not required to be present at the scene but is required to have prior or subsequent knowledge of the violence and the necessary intention.

In the Marley Pipes matter, the 41 employees were not identified through direct evidence as having been part of the misconduct. Thus, any inference to be drawn that these employees had associated themselves with the assault before it commenced, or after it ended, whether through direct participation or association, was required to be consistent with all the proven facts.

The proven facts were that all the employees had reported for duty, left their workstations and embarked on the unprotected strike. All the employees moved towards Mr Steffens’ office, carrying placards, which sought his removal. The employees sought out Mr Steffens and remained present on the scene during the course of and after his assault, with none of the employees coming to his aid.

Having regard to the possible inferences to be drawn, the LAC noted that no alternative inferences were advanced by the employees. There was no evidence that any of the 148 employees distanced themselves from the actions of the group. In fact, the undisputed evidence was that the employees had all celebrated the assault after the fact. It followed that the most probable and plausible inference to be drawn was that all the employees were involved in, or associated themselves with, the assault.

It was accordingly clear that the employees associated with the actions of the group before, during and after the misconduct and had the requisite prior or subsequent knowledge of the violence. As regards the necessary intention, the LAC found that such intention is proved where an employee either intended for the misconduct to take place or must have at least foreseen the possibility that the misconduct would take place. Having regard to the facts, the 41 employees were proved to have held such intent.

In the circumstances, the LC could not be faulted for finding that the 41 employees committed the misconduct for which they had been dismissed. Given the seriousness of the misconduct, the LAC found that dismissal was an appropriate sanction.

The appeal was dismissed.

Are you required to furnish security to stay the enforcement of an award?

In Emalahleni Local Municipality v Phooko NO and Others [2021] 9 BLLR 941 (LC), the employee, appointed as head of traffic and security of the Emalahleni Local Municipality (the Municipality), was transferred to a new position. Aggrieved by the transfer, and following the conclusion of a grievance process, the employee refused to report to his new position. As a result, the employee was dismissed. The employee referred an unfair dismissal dispute to the relevant bargaining council and was, thereafter, reinstated with backpay. Consequently, the Municipality instituted a review application alleging a defect in the arbitration award.

After a few months had passed, the employee had the arbitration award certified and sought to execute the award. In turn, the Municipality launched an urgent application seeking an order to stay the enforcement of the award in terms of s 145(3) of the Labour Relations Act 66 of 1995 (the LRA), as well as an exemption to furnish security as contemplated in s 145(7) of the LRA.

The Labour Court (LC) was confronted with three issues, namely –

  • whether a stay of enforcement of an award may be granted in the absence of security being furnished;
  • whether an order granting or refusing a stay can be made without an order for payment of security or exemption therefrom; and
  • whether a case had been made out by the Municipality for the stay and an exemption from furnishing security.

Section 145 of the LRA regulates the review of arbitration awards. Section 145(3) of the LRA provides that the LC may stay the enforcement of an award pending its decision in respect of the review application. In turn, s 145(7) provides that the institution of review proceedings does not suspend the operation of an arbitration award, unless the applicant furnishes security to the satisfaction of the court.

The LC noted that some judges had taken the view that security must be furnished before an application for a stay can be considered but disagreed with this view. Before s 145(7) was included in the LRA, a party could stay the enforcement of an award in terms of s 145(3). Despite the insertion of ss 145(7) and 145(3) had been left unchanged. If the legislator intended for a connection between these subsections, it would have expressly done so. Moreover, it was noteworthy that s 145(3) refers to a ‘stay [of] the enforcement’ whereas s 145(7) refers to suspending the operation of the award.

The LC held that the mischief that s 145(7) seeks to curb only arises once a review application has been instituted. An application in terms of s 145(3) may, however, be launched even before a review application is instituted. Prior to the introduction of s 145(7), the prevailing position was that the launching of a review does not suspend the operation of an award. This subsection codified that position. For these reasons, it is wrong to conclude that in the absence of furnishing security, the court is not empowered to exercise its discretion in terms of s 145(3).

The view that security must be furnished as a precondition for any stay to be granted resulted from a misreading of earlier judgments on which the court had relied. However, the position had since been clarified by the Labour Appeal Court (LAC) in City of Johannesburg v SA Municipal Workers Union on behalf of Monareng and Another (2019) 40 ILJ 1753 (LAC). In this judgment, the court held that a stay of enforcement could be granted where injustice would otherwise result and in doing so, the court will be guided by the factors applicable in applications for interim interdicts. There is no need to furnish security or apply for exemption from that requirement before a stay may be granted.

As to whether the Municipality had made out a case for a stay, the court noted that the review had been launched timeously and had been prosecuted in accordance with the LRA and the Uniform Rules of court. Should the Municipality succeed with its review application, the arbitration award would be set aside and not staying the award would accordingly result in irreparable harm. Such harm would not be prevented by ordering the Municipality to pay security.

Notwithstanding the above, the court was satisfied that the municipality had made out a case for being absolved from furnishing security. In this regard, the onus lies with an applicant to demonstrate that it has assets of a sufficient value to meet its obligations should the arbitration award be upheld on review. In the present matter, there was evidence that the municipality had assets, capital donations and equitable shares from the National government. Accordingly, the court found that the Municipality should be absolved from providing security.

The court ordered that the enforcement of the award be stayed pending the finalisation of the review application and that the Municipality be absolved from furnishing security as contemplated in s 145(7) of the LRA.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2021 (Nov) DR 45.

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