Authors: Nombulelo Myeni – Associate & Sheila Moagi – Candidate Attorney
The arrest of former State President Jacob Zuma sparked civil unrest across the country, particularly in KwaZulu-Natal and Gauteng. The vandalism and looting have had devastating effects on numerous businesses.
In light of the various acts of misconduct and criminal activity, the burning question for most employers is whether they can dismiss their off-duty employees. In particular those who can be said to have acted with common purpose on the basis that they had associated themselves with the looting and encouraged those involved in the looting.
Common purpose
It is a trite employment law principle that employees who commit acts of misconduct outside the workplace may be disciplined where the employer sufficiently proves a nexus between the misconduct and the employer’s business, as well as a sufficient and legitimate interest in the conduct of the employee outside of the workplace. However, there are circumstances where an employer cannot easily prove that the employee directly committed such acts of misconduct and must rely on circumstantial evidence, such as the employee’s presence at the scene during the incident.
In such cases, the doctrine of common purpose can aid the employer’s case. It holds that where two or more people agree to commit a crime or actively associate in a joint unlawful venture, each will be responsible for the acts of the others that fall within their common purpose or design.
In the recent Labour Appeal Court case of NUMSA obo Aubrey Dhludlhu and 147 other & Marley Pipe System SA (Pty) Ltd (JA33/2020), the Labour Appeal Court had to decide on the individual culpability of employees in the context of collective misconduct.
The facts
Marley Pipe Systems had proposed a 7.5% wage increase to its employees, on condition that if the Metal and Engineering Industries Bargaining Council (MEIBC) negotiations resulted in a higher increase, this higher increase would be paid to the employees. Dissatisfied with the proposal, the employees embarked on an unprotected strike. During this strike the Head of HR was severely assaulted.
One hundred and forty-eight employees were dismissed for participating in the unprotected strike and acting with common purpose in the assault of the Head of HR. The employees who participated in the misconduct were identified by photographic and video evidence. Employees who disputed their participation were given the opportunity to provide Marley Pipe with evidence to that effect. Those who gave acceptable explanations were exonerated.
Twelve of the employees were identified as having participated directly in the assault. The remaining ninety-five were found to have acted with common purpose in the assault as they were present at the scene of the incident.
Aggrieved with their dismissals, the employees, represented by NUMSA referred an unfair dismissal dispute to the MEIBC, where the dispute remained unresolved following the conciliation process. The unfair dismissal claim was then lodged with the Labour Court.
The Labour Court held that the evidence of the respondent’s witnesses was both credible and reliable, and consistent with the video and photographic evidence available. As a result, the court found that the employees who were identified as being on site had acted with common purpose in associating themselves with the events on the day. Aggrieved by this outcome, the employees, referred the matter to the Labour Appeal Court. By the time of the appeal, a further ninety-five employees had been identified via photographic and video footage to have directly participated in the assault. The appeal was referred in respect of the remaining forty-one employees.
The contentious issue on appeal was accordingly not whether the dismissed employees had embarked on an unprotected strike, rather whether the forty-one employees who were identified by photographs and video footage as being present at the scene were also associated with the assault. The employees contended that Marley Pipe could not prove that they acted in common purpose in assaulting the Head of HR merely by being present at the scene.
In considering the common purpose principle, both the Labour Court and the Labour Appeal Court referred to the Constitutional Court judgment of National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Service (Pty) Limited and Others[1], where the court held that it was unnecessary to place each employee on the scene to prove common purpose which could be established by inferential reasoning having regard to the conduct of the workers before, during and after the incident of violence.
[1] National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (CCT202/18) [2019] ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC); [2019] 9 BLLR 865 (CC); 2019 (5) SA 354 (CC) (28 June 2019).
The Constitutional Court held further that:
“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…”.
Accordingly, the forty-one employees who were present during the assault were found to have acted with the common purpose of assaulting the Head of HR, even though they did not directly inflict physical harm upon him.
Conclusion
The doctrine of common purpose empowers employers to not only discipline employees who are clearly identified to have been looting, but also employees who actively associate themselves with the looting. For example, employees who are identified to be present at the scene, encouraging the looting even through social media, helping to transport stolen goods, hiding stolen good and having subsequent knowledge of the misconduct. Provided, of course, the employer sufficiently proves a nexus between the misconduct and the employer’s business, as well as a sufficient and legitimate interest in the conduct of the employee outside of the workplace.
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