SOUTH AFRICA: DOCTRINE OF COMMON PURPOSE DOES NOT SERVE TO SACRIFICE INNOCENT EMPLOYEES OUT OF SYMPATHY FOR EMPLOYERS

By Amandla Makhongwana,Yonela Sicam Tuesday, August 30, 2022
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The Constitutional Court has confirmed that the doctrine of common purpose within the context of violent acts by employees, requires individual complicity to be established. In a unanimous judgment in the matter of Numsa obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30, handed down on 22 August 2022, the Court also stated that any contrary requirement would be a ‘cruel instrument’ that can attach guilt and impose sanction on the innocent.

The facts

Following communications on the wage increase agreement reached in sectoral level bargaining under the Plastics Negotiating Forum in July 2017, National Union of Metalworkers in South Africa (NUMSA) members on the morning shift at Marley Pipe Systems (SA) Pty Ltd (Respondent) embarked on an unprotected strike. The strike culminated in the physical assault of the Respondent’s head of human resources, Mr Ferdinand Christiaan Steffens.

148 employees were dismissed following a disciplinary process, which found them guilty of two counts of misconduct: (i) assault of Mr Steffens, and (ii) participation in an unprotected strike. Of the dismissed employees, 40 were never identified as having been at the scene of the assault, and one employee was only seen arriving at the workplace after the assault had taken place.

The employees referred an unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council, which referred the matter to the Labour Court following a failed conciliation. The Labour Court upheld the dismissal and awarded the Respondent damages, as claimed.

NUMSA appealed to the Labour Appeal Court (LAC) in respect of the 41 employees, arguing that their dismissals were substantively unfair. The appeal was unsuccessful, as the LAC held, among others, that common purpose had been established. This was because there was no evidence that any of the 148 employees had disassociated themselves before, during or after the assault of Mr Steffens. Aggrieved by the LAC’s finding, NUMSA referred the matter to the Constitutional Court.

The Constitutional Court’s findings

The issue before the Constitutional Court was whether the LAC created new rules on the proof of common purpose, and if it did, whether such rules accord with the requirement that dismissals be substantively fair.

The Constitutional Court held that the LAC had indeed created new rules in its application of the doctrine of common purpose. In particular, it insisted that in order to be found not guilty under the doctrine, bystanders (i) must take positive steps to distance themselves from the violent act; and (ii) intervene and protect others from physical harm. According to the Constitutional Court, these new principles would have a significant effect on employees where protected and/or unprotected strikes turn violent.

The Constitutional Court cited with approval the application of the doctrine of common purpose as set out by the Supreme Court of Appeal in S v Mgedezi [1988] ZASCA (Mgedezi). In terms of this case, in order to be held liable under the doctrine of common purpose, the following is required:

  • presence at the scene of the violence (subject to the qualification below);
  • awareness of the violent conduct;
  • intention to make common cause with those actually committing the violent conduct;
  • manifesting the sharing of common purpose by performing some act of association with the conduct of the perpetrators; and
  • the requisite mens rea (criminal intent).

The Constitutional Court further clarified that the above is an accurate summary of the law where the person sought to be held liable was present at the scene. However, an employee’s presence at the scene is not necessarily a requirement to attract liability.

Although the Constitutional Court empathised with employers in relation to the difficulties they faced in proving an individual employee’s complicity in violent acts during a protected and/or unprotected strike for purposes of disciplinary proceedings, it reasoned that modern technological means were available to ameliorate these evidentiary difficulties.

The Court stated that it would be a ‘travesty’ to charge, find guilty of acts of violence and dismiss employees who, although part of a group of striking workers, never took part in and/or associated with the violent acts, simply because they were bystanders. In this regard, the Constitutional Court held that for liability to attach, there must be proof (on a balance of probabilities) of the employee’s complicity in the acts of violence, including proof on the basis of the doctrine of common purpose.

The court accepted the LAC’s finding that the 40 employees were likely at the scene when Mr Steffens was assaulted, but found that there is no general legal (as opposed to moral) obligation on employee/s to intervene to stop an assault. Therefore, there was no basis to import such an obligation. Further, mere presence and observing does not satisfy the requirement of direct and/or circumstantial evidence proving that the individual employees in some form associated themselves with the violence either before, during or after it ended. An intention in relation to the violent act is required. Accordingly, the employees could not be required to disassociate when they never associated in the first place.

The Constitutional Court held that although the employees’ continued singing and dancing while Mr Steffens was being assaulted was morally reprehensible, such was by no means an indication that they were associating themselves with the assault, as the singing and dancing started before Mr Steffens was assaulted and just did not ‘screech to a halt’ when the assault began.

Consequently, the dismissal of the 41 employees on the charge of the assault of Mr Steffens was found to be substantively unfair, as the principles applicable to common purpose had not been satisfied.

Because the employees were dismissed for both the attack and the unprotected strike, the Constitutional Court remitted the matter back to the Labour Court to decide the sanction on the charge of participation in an unprotected strike only.

Concluding remarks

This decision is an important one for employers to bear in mind when it comes group violence, especially in the context of strike action, where violence is increasingly commonplace. It confirms the principle that when employers seek to dismiss employees on the basis of common purpose, they must establish that the employees performed some acts that show that they associated themselves with the violence either before, during or after it ended. As the Constitutional Court appreciated, this will not always be easy for employers to do. It is accordingly crucial for employers to ensure that the available technologies, such as access control and CCTV cameras, are effectively utilised and that managers are trained to keep accurate records of events, such as a ‘strike diary’. Without such evidence, it will be difficult for employers to discipline employees on the basis of the doctrine of common purpose.