In the recent case of NUMSA obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30, the Constitutional Court ruled that without being identified, employees cannot be dismissed for being part of a group that commits acts of violence during a strike.

During an unprotected strike, the striking employees of Marley Pipe Systems (the employer) called for the removal of their HR Head, “Steffens”.  When Steffens came out to face the striking employees, he was surrounded and severely physically assaulted and injured.

The employer secured an order interdicting the striking employees from committing acts of violence and engaging in the unprotected strike. Disciplinary action then took place resulting in the dismissal of 148 employees for two counts of misconduct: the assault of Steffens and participation in the unprotected strike.  One hundred and thirty-six employees were found guilty of assault on the basis of common purpose and the remaining 12 employees were found to have been involved in the actual physical assault of Steffens.

At Labour Court, the 148 employees argued that their dismissals were substantively unfair because no assault or unprotected strike took place.  The Court upheld the dismissals and awarded damages to the employer.  Out of the 148 employees that were dismissed, 12 were identified to have actually assaulted Steffens; 95 were placed at the scene through evidence and the remaining 41 employees were not identified as having been on the scene.

NUMSA appealed to the LAC on behalf of the 41 employees not identified.  The LAC concluded that these employees acted in common purpose with the assailants because they did not disassociate from the assault before, during or after its occurrence nor did they intervene to stop the assault.  As such, NUMSA’s appeal was unsuccessful.

On appeal to the Constitutional Court, NUMSA persisted with their argument that the dismissals were substantively unfair because the employees were not identified.  The Court agreed with NUMSA and found that the LAC incorrectly created new principles for the doctrine.

Madlanga J held the view that it would not be correct to charge and dismiss an employee for being part of a group of violent striking employees, if that employee never took part in any act of violence.  To attach liability to such an employee, the principles of common purpose must be adhered to, which means that there must be proof of an employee’s complicity and “necessary intention” in the acts of violence.

The effect of this judgment is that it will not pass muster to dismiss an employee on the grounds that they were present and watching a group of violent, striking employees. Now, a greater onus is placed on employers to adopt means of identifying employees who physically commit the violent acts.  Some of the means flagged by Madlanga J include access control and CCTV – this, however, raises the question of what recourse is available to an employer when these very same means of identification are destroyed during a strike.  Unfortunately, this judgment has left this question unanswered.

Madlanga J did point out that he is sympathetic to the difficulties facing employers but held steadfast to the view that employers can “ameliorate the evidentiary difficulties”.  An option still left for employers facing such situations would be to organise meetings with employees known to be present at a strike, on a one-on-one basis, and request names of the employees who were present at that strike and committed acts of violence.  During these meetings, the employer needs to assure the employee that their confidentiality will be protected.

The practical effect of this must be questioned. Unfortunately, intimidation is rife during strikes in South Africa. Experience has shown that employees are very reluctant to identify colleagues who have committed misconduct. When the act of misconduct is one associated with physical violence, the probabilities of any employee spilling the beans in an interview an individual basis is highly unlikely. Understandably, workplace politics and fear of disclosure and intimidation will be at the forefront of the employee’s mind.

The employment relationship is built on trust and mutual respect. It is difficult to understand how these factors remain intact in circumstances when employees do not actively participate in gross misconduct but do nothing to prevent it or to share information with an employer that will assist in identifying those that participated in the acts of gross misconduct,

Employers are therefore advised to ensure that a thorough strike plan is prepared before a strike takes place with special attention given to how those employees who misconduct themselves can be identified.  Furthermore, consideration should be given to how the striking workforce will be addressed during the strike to ensure the safety of employees.