28 June 2021 by Employment Law Alert

Herd mentality could get you herded into court … and fired

Can an employee get dismissed for participation in an unprotected strike action and assault without being identified? The short answer to the dreaded question, is yes. You can be dismissed just for being in the crowd, even though you were not the one assaulting your fellow employee. It is called Common Purpose. Can your employer take legal action against you? Yes, they can.

This is exactly what happened in January 2020, when the Labour Court, in the case of NUMSA obo Aubrey Dhludhlu & Others and Marley Pipe Systems (SA) (Pty) Ltd, case number JS878/17 had to assess whether 148 employees acted with common purpose when they assaulted the head of Human Resources. The employer argued that all the employees directed their disgruntlement towards the achievement of the heinous crime. Those that could confront the employee in person, physically assaulted him, and those that could not, incited the others to assault him, and rejoiced at the outcome.

The Labour Court (LC) restated the requirements for establishing common purpose and held that the employees who were identified as being on site had acted with common purpose in associating themselves with events on the day. The Labour Court reached this conclusion with reference to the decision of the Constitutional Court in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (Dunlop) where it was held that it was unnecessary to place each employee on the scene to prove common purpose. This could be established by inferential reasoning having regard to the conduct of the employees before, during, and after the incident of violence. The LC that the evidence showed that the employees had taken part in the unprotected strike, had assembled in the canteen, marched on the employer’s premises carrying placards, and demanded the removal of the employer’s head of Human Resources.

Unhappy with the decision of the LC, the Union took the matter on appeal. In NUMSA obo Aubrey Dhludhlu & Others and Marley Pipe Systems (SA) (Pty) Ltd, case number JA33/20 the Labour Appeal Court (LAC) had to determine whether 41 of the 148 dismissed employees who had not been identified, had been on the scene when the assault took place, and therefore, could be associated with the assault. This was so since there was no evidence that the 41 unidentified employees had been on the scene of the assault, that they had been aware of the assault, had intended to make common cause with it, or that they had performed an act of association with it.

The employer on the other hand relied on the fact that the 41 unidentified employees had been placed on the scene of the assault through clocking records, were absent from their workstations, and video footage showed the entire crowd moving to the offices where the assault took place. Apart from one employee who was the only witness called by the Union during the trial proceedings, none of the other employees testified or made use of the Dropbox or WhatsApp opportunities provided by the employer to explain their conduct or whereabouts. For these reasons, the Labour Appeal Court (LAC) found that the LC did not err in finding that the 41 unidentified employees had acted with common purpose, that their dismissal was fair and that the appeal fell to be dismissed.

The LAC held that from the evidence before the LC, it was clear that all the employees, including the 41 unidentified employees associated with the actions of the group before, during and after the misconduct. The 41 unidentified employees 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 that any assault had occurred and refused the opportunity to explain their own conduct in relation to it.

The LAC differentiated between the test to be applied in a criminal law context and the test to be applied in an employment law context. The LAC held that in a criminal context, a person must have intended a criminal result or must have foreseen the possibility of the criminal result ensuing and nonetheless actively associated himself reckless as to whether the result was to ensue. In an employment law context, intention exists where it is proved that an employee intended that misconduct would result or must have foreseen the possibility that it would occur and yet, despite this, actively associated himself reckless as to whether such misconduct would ensue. When considering the facts before the Court, the LAC held that the employer proved that the 41 unidentified employees held such intent.

These are important principles to be taken into consideration during industrial action and shows that employees will have intent if they associate themselves with the crowd engaging in misconduct.

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