The Labour Relations Act of 1995 (LRA), as amended, distinguishes between a “protected” and an “unprotected” strike. Employees who participate in a “protected” strike enjoy protection by the LRA and cannot be dismissed unless they are guilty of misconduct. Strikes can sometimes become violent and out of control, making it difficult for an employer to determine the real culprits. In this instance, the question arises as to whether the collective dismissal of all the employees with a common purpose for committing the misconduct will be fair. However, the doctrine of common purpose determines that an employee can be found guilty of misconduct if they actively associate themselves before, during or after the misconduct.

In the matter of NUMSA obo Dhludhlu and others v Marley Pipe Systems SA (Pty) Ltd CCT 233/21, the doctrine of common purpose was discussed regarding the culpability of bystanders in contrast to strikers committing the assault. In this matter, the Applicants were unhappy with their wage increase and demanded to meet with the head of the Human Resources Department, Mr. Steffens (Mr. S). The Applicants participated in a march to his office while singing and holding placards which read “away with Ferdi; we want 15%”. During this time, the employees assaulted Mr. S by pushing him through a window and punching and kicking him when he attempted to speak to the employees. This resulted in Mr. S obtaining severe injuries. After an ultimatum was given to the employees, they left the employer’s premises. The employer obtained a protection order from the Labour Court (LC) to declare the strike unlawful and to prohibit the employees from acts of violence, intimidation, and harassment. The Respondent ultimately dismissed all 148 strikers.

During the strike, some employees were actively engaged in assaulting Mr. S, other employees on the scene actively associated themselves with the assault, and the remaining employees were alleged to only be bystanders. The Labour Appeal Court (LAC) found that the dismissals of all the employees who were bystanders were substantively fair because they did not take any necessary steps to distance themselves from the misconduct or attempt to stop the misconduct or intervene.

However, the Constitutional Court (CC) found that although these bystander employees formed part of the march, held placards, were present during the assault and did not dissociate themselves from the assault, there was no evidence that they ever associated with the assault. The CC also found that an employee has no legal obligation to intervene or stop the misconduct. Furthermore, the CC held that individual complicity in the commission of acts of violence must be established.

It is thus clear that employers must be cautious when applying the doctrine of common purpose because, in some instances, it may amount to the substantively unfair dismissal of employees. Employers must ensure that there is sufficient evidence to prove that a specific employee played an active role in this type of misconduct to ensure that the dismissal is substantively fair.

Article By: Marteleen Lindemann
Dispute Resolution Official – CEO Klerksdorp