BY Itayi Gwaunza AND Claire Nolan
An employee does not have to be caught red-handed in an act of misconduct to be found culpable
A group of 50 striking employees confront their manager in his office. An altercation ensues, which culminates in the manager being violently assaulted. Only five of the striking employees are caught “red-handed”, having been identified as the perpetrators of the violent assault. The rest are only identified as having been there when the assault took place.
Can the employer dismiss all of the striking employees who were present when the violent assault took place, including the 45 striking employees who happened to be there, but who did not themselves carry out the assault?
According to the doctrine of common purpose, a person who associates themselves with the acts of a criminal perpetrator, is criminally liable.
This was considered in NUMSA obo Aubrey Dhludhlu & Others and Marley Pipe Systems (SA) (Pty) Ltd. During the course of an unprotected strike, several Marley Pipe Systems employees surrounded the head of human resources, Mr Steffens, pushed him out of a glass window, threw rocks at him, and punched and kicked him while he lay on the ground. He suffered injuries to his face, his right arm and body.
Marley Pipe Systems took disciplinary action against 148 employees. It had identified these employees from photographic and video evidence of events on the day, clock cards used in its payroll system which recorded the names of employees who had arrived and remained at work, job cards used at workstations and through the evidence of the employer’s witnesses. Using this evidence, 12 employees were identified as having participated directly in the assault of Mr Steffens. The remaining employees were found to have acted with common purpose on the basis that they:
- had associated themselves with the assault through their presence at the scene;
- had encouraged those involved in the assault;
- had failed to come to the assistance of Mr Steffens,
- had rejoiced in the assault; and.
- had held placards demanding that Mr Steffens be removed from his post.
Following a disciplinary enquiry, Marley Pipe Systems dismissed all 148 employees for participating in an unprotected strike and for the assault on Mr Steffens.
The National Union of Metalworkers of South Africa (“NUMSA”), acting on behalf of the 148 employees, pursued an unfair dismissal dispute in the Labour Court. Relying on the doctrine of common purpose, the Labour Court found that the dismissal of all 148 employees was fair.
By the time the dispute reached the Labour Appeal Court, NUMSA had, in effect, accepted that the dismissal of the 12 employees who were identified as having participated directly in the assault of Mr Steffens was fair. It was also accepted that the dismissal of 95 employees, who had been identified through photographs and video evidence as having been present when the assault took place, and as having therefore associated themselves with the assault, was fair – this being based on the doctrine of common purpose.
However, NUMSA contended that there was no evidence that the remaining 41 employees had been at the scene of the assault, that they had been aware of the assault, that they had intended to make common cause with the 12 employees, or that they had performed an act of association with them. Accordingly, NUMSA pursued an appeal on behalf of only 41 of the 148 employees on the basis that Marley Pipe Systems had failed to prove that the 41 were guilty of assault and that their dismissal was fair based on the doctrine of common purpose.
The Labour Appeal Court referred to the remarks of the Constitutional Court in a previous matter (that did not directly deal with the doctrine of common purpose), the National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others:
“Evidence, 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. Presence at the scene will not be required, but prior or subsequent knowledge of the violence and the necessary intention in relation thereto will still be required”.
According to the Labour Appeal Court:
“In Dunlop, the [Constitutional] Court stated that association with the misconduct before it commenced or after it ended may be sufficient to establish complicity in the workplace context, with it not required that an employee be present at the scene. However, prior or subsequent knowledge of the misconduct and the necessary intention in relation to it is still required. This moves the requirements to prove common purpose in the workplace outside of the strict requirements set out in the case law from Mgedezi. It allows an employee to be held to account for collective misconduct where the employee associated with the actions of the group before or after the misconduct, even if not present on the scene; where the employee had prior or subsequent knowledge of the misconduct; and he or she held the necessary intention in relation to it”.
The Labour Appeal Court stated that, in determining whether common purpose was present, a court is required to consider the circumstantial evidence available to it and to select the inference which is the more plausible or natural one from those that present themselves.
The Labour Appeal Court accepted the following to have been the proven facts:
- all employees had reported for duty, left their workstations and embarked on the strike;
- all employees, save for one employee, were on Marley Pipe Systems’ premises and away from their workstations at the time of the assault;
- the striking employees, all of whom were NUMSA members, moved together towards Mr Steffens’ office, holding placards and presenting written demands which sought his removal;
- all the employees sought out Mr Steffens and remained present on the scene during the course of, and after, his assault, with none of the striking employees coming to his aid; and
- apart from one employee, no employee took advantage of the opportunities availed to them, both prior to and during the disciplinary hearing, or before the Labour Court, to distance themselves from the events of the day.
Applying the doctrine of common purpose, the Labour Appeal Court found that the most probable and plausible inference from the evidence and the proven facts was that all 41 employees had associated themselves with the actions of the 12 employees before, during or after the assault on Mr Steffens. All 41 employees had had the requisite intention that an assault would result or saw the possibility of the assault on Mr Steffens taking place; despite this, they actively associated themselves with the assault. Accordingly, the Labour Appeal Court found that the Labour Court could not be faulted for finding that all employees had committed the misconduct for which they were dismissed and that, because the misconduct was serious, dismissal was the appropriate sanction.
This decision illustrates that an employee does not need to be caught “red-handed” to be found guilty of acts of misconduct perpetrated by others. The doctrine of common purpose can be an effective tool in justifying the fairness of the dismissal of employees who, despite not being caught “red-handed”, are proven to have associated themselves with acts of misconduct before, during or after their commission, with the requisite intention that the acts or misconduct would result in, or where the employees must have foreseen the possibility of, the misconduct occurring.
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