LABOUR LAW in a Nutshell July 2021
COMMON PURPOSE: What evidence is relevant to prove misconduct based on the principle of common purpose?
Unfortunately, the CCMA and the Labour Court have too often been called on to consider cases involving the dismissal of employees for their involvement in collective or “mob” violence in the workplace.
A recent case in point concerned a mob attack by employees on the HR manager at Marley Pipes. They went on an unprotected strike and demanded, amongst other things – that the HR manager be dismissed. When the manager left his office to talk to them, the strikers cornered and seriously assaulted him. He was pushed out of a glass window; they threw rocks at him, and while he lay on the ground, punched and kicked him.
Dismissal for collective misconduct
Marley took disciplinary action against 148 employees. They were dismissed following an enquiry for participating in an unprotected strike and for acting with a common purpose in the attack on the HR manager.
The identity of the employees involved in the attack was determined from –
- The employer’s photographic and video evidence of events on the day,
- Clock cards used in the payroll system which recorded the names of employees who had arrived and remained at work,
- Job cards used at workstations.
- Evidence of witnesses.
The employees were also given an opportunity to give an explanation via Dropbox or WhatsApp. They would not face disciplinary action if they gave a reasonable explanation of what had happened. In this way, 12 employees were identified as having been directly involved. The remaining 136 were found to have acted with common purpose in the attack by the 12.
The circumstantial evidence which implicated the 136 in the common purpose were that they had –
- Associated themselves with the assault through their presence on the scene; encouraged those involved in the assault,
- Failed to come to the assistance of the HR manager,
- “Rejoiced” in the assault,
- Held placards demanding that the manager be removed, and
- All regarded themselves as leaders in the events on the day
They were all found guilty of misconduct and summarily dismissed. They referred an unfair dismissal dispute to the MEIBC and then to the Labour Court. They claimed there was no unprotected strike and no assault.
The court accepted the company’s evidence and found the employees’ evidence to be improbable. It dismissed the employees’ claim for unfair dismissal and instead ordered them to pay the company’s claim for damages in the sum of R829 835.00.
Labour Appeal Court
The union appealed to the LAC on behalf of 41 employees. Unlike the rest, the 41 were not identified by photos and videos as having been at the scene of the assault. However, there was no dispute, based on the circumstantial evidence, that they were present at the scene and that they associated themselves with the events of the day.
The LAC dismissed the appeal. It agreed with the Labour Court’s findings that the 41 had associated themselves with the actions of the group before, during and after the misconduct. It found that they –
- Took no steps to distance themselves from the misconduct either at the time of, during or after the assault.
- Persisted with the denial, both in their pleaded case and in the evidence of their witness, that any assault had occurred.
- Refused the opportunity to explain their own conduct in relation to it.
TIP: The employer must produce sufficient direct or compelling circumstantial evidence to prove that the individual employees either participated directly or that they associated themselves with the misconduct before, during and after the event. To show common purpose – the employer must show an employee intended the misconduct would ensue or must have foreseen the possibility that it would occur. Despite this, the employee actively associated himself or herself with the misconduct – reckless as to whether the misconduct would follow.
NUMSA obo Dhludhlu and Others v Marley Pipe Systems SA (Pty) Ltd (JA33/2020)  ZALAC 13 (23 June 2021)
Source: Worklaw Newsletter
Edited by Sarah Christie
labour lawyer & mediator
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