Employers should exercise caution when dismissing employees charged with assault, even if the assault is serious. An employer, all too often, reacts emotively to alleged assault due to the grievous nature of the offence. This diverts the employer’s attention from the cold, hard facts when assessing whether dismissal is indeed an appropriate sanction in the circumstances.

John Grogan states the following:
“Assault is generally accepted as a valid ground to dismiss the assailant. The legal requirements for the offence are the intentional and unlawful application of physical force, however slight, to the complainant’s body or threat that such force will be applied. In the employment context, factors that should be considered before imposing a sanction on an employee for a proven assault include the circumstances in which the assault took place, the degree of force used or the gravity of the threat, the relationship between the employee and the complainant, and the effect of the assault on the interpersonal relations and the business of the employer.”

Provocation can be described as an act whereby a person acts out of anger due to being taunted by another person, ultimately resulting in retaliation to the taunting. Provocation is often called the temporary “loss of control” due to being taunted by another person.

Provocation may occur through either verbal or physical actions, and being provoked may be used as a valid defence to assault. However, the assault arising from this provocation should be an immediate and sudden act. The offender should not have had time to “cool off”, as our laws suggest that should a “cooling off” period exist, the defence of provocation may not be successful, as it may be construed that the offender had time to think about his actions, resulting in the eventual assault being intentional.

The test in proving provocation is the reasonable man test, thus asking the question, “Would a reasonable person in the same circumstances have acted in the same way?”. The proof must be on a balance of probabilities. Once proven, provocation needs to be considered as a mitigating factor when an employee has been charged with assault.

Provocation as a defence has been successful in the following cases where a person was provoked through verbal and or physical actions:

  • In Metrorail vs SATAWU, an employee assaulted a manager. The arbitrator agreed that the employee had been guilty of assault but accepted that the reason for the assault was not, as alleged, his reluctance to work under a fellow employee. Instead, the arbitrator found that the victim of the assault had made racist remarks which had provoked the assault. This mitigating circumstance rendered the penalty of dismissal too harsh, and the employee was reinstated.
  • In FEDCRAW obo Boymans, the employee was dismissed for assault. The employee brought witnesses to the arbitration hearing to show that she had merely acted in self-defence. The employer could not provide any evidence to the contrary. As such, the arbitrator found that the employer could not prove that the employee was guilty of assault and declared the dismissal to be unfair.
  • In Vereeniging Refractories vs NETU obo Botes, the employee was dismissed for assaulting a colleague. The employee testified that the co-employee had sworn at him, hit him, and kicked him. The employee then saw a knife in the co-employee’s hand and pushed him away in self-defence. The arbitrator found that it was the employer’s duty to prove that the employee was guilty and that the employer had failed to prove that the employee did not act in self-defence on a balance of probabilities. As a result, the dismissal was found to be unfair, and the employee was reinstated.

With the above in mind, an employer who believes that an employee has failed to adhere to the rules must conduct an in-depth misconduct investigation into the allegations. This is to gather solid proof that the employee is, in fact, guilty and that dismissal, as a sanction, is warranted, as opposed to some other, more appropriate corrective action.

Should an employee refer a dismissal to the CCMA, an employer would bear the onus of proving that the dismissal was indeed fair. If an employer fails to convince the arbitrator of this, one could potentially be ordered to reinstate the dismissed employee and/or pay them up to a twelve (12) months salary or possibly more.

Article by: Marco Horak
Dispute Resolution Official – Cape Town