ZACC 29
Judgement Date: 22 August 2022
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Monday, 22 August 2022 at 10h00 the Constitutional Court handed-down judgment in an application for leave to appeal by NUMSA, the applicant, against a judgment and order of the Labour Appeal Court. That Court heard an appeal from the Labour Court regarding the dismissal of 41 employees of Marley Pipes Systems (SA) (Pty) Limited, the respondent, for the assault of another employee and participation in an unprotected strike. On the assault charge, the finding of guilt was based common purpose.
In July 2017 a wage increase agreement affecting the plastics industry was reached pursuant to sectoral level bargaining under the auspices of the Plastics Negotiating Forum. The respondent’s business is within the plastics industry. On 13 July 2017 the respondent communicated the increase to NUMSA shop stewards. On that same day the shop stewards, in turn, communicated the increase to the respondent’s employees who are NUMSA members. Unhappy with the increase, NUMSA members who worked on the morning shift embarked on an unprotected strike on the morning of 14 July 2017. They first gathered at the canteen waiting to be addressed by Mr Ferdinand Christiaan Steffens, the respondent’s head of human resources. When he did not arrive, they moved towards the respondent’s administrative offices carrying placards which called for the removal of Mr Steffens. When Mr Steffens came out the striking employees surrounded and assaulted him severely. As a result, he sustained injuries all over his body.
After a disciplinary process that took place during July to August 2017, the respondent dismissed 148 employees. An independent chairperson found the employees guilty of two counts of misconduct. One was the assault of Mr Steffens and the other was participation in the unprotected strike. One hundred and thirty-six of the employees were convicted of assault on the basis of the doctrine of common purpose. The other 12 were found to have been involved in the actual physical assault of Mr Steffens. The respondent dismissed all 148 employees pursuant to a recommendation to that effect by the chairperson. Aggrieved by their dismissals, the employees, represented by NUMSA, referred an unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council. After conciliation failed, a claim of unfair dismissal was referred to the Labour Court.
At the Labour Court the employees pleaded that no assault or unprotected strike took place. Based on that, they contended that the dismissals were unfair. The respondent filed a counterclaim for just and equitable compensation in terms of section 68(1)(b) of the Labour Relations Act 66 of 1995 for losses incurred as a result of the unprotected strike, and, in the alternative, damages. The Labour Court was satisfied that the employees were guilty of misconduct. It upheld the dismissals and awarded damages. NUMSA appealed to the Labour Appeal Court on behalf of only 41 of the 148 employees. The appeal was unsuccessful. The Labour Appeal Court ruled that common purpose had been established because none of the 41 employees had “intervened to stop the assault” and should have “dissociated themselves in [some] way from the assault before, during or after it” so as to escape liability.
Before the Constitutional Court NUMSA argued that the dismissals were substantively unfair. In particular, it took issue with the approach adopted by the Labour Appeal Court in its formulation of the doctrine of common purpose. In a unanimous judgment, the Constitutional Court took issue with the Labour Appeal Court’s conclusion that the employees had not dissociated themselves from the assault. It held that mere presence and watching does not satisfy the requirements set out in in its earlier judgment in Dunlop and in an earlier judgment of the Appellate Division in Mgedezi. There must be evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended. The person concerned must have manifested their sharing of a common purpose with the perpetrators of the assault by themselves performing some act of association with the conduct of the other. Thus, employees cannot be required to intervene to stop the misconduct or dissociate themselves in some way from the misconduct when they never associated in the first place. The court further held that individual complicity in the commission of acts of violence must be established. If it were to be otherwise, the law would be a cruel instrument that attaches guilt and imposes sanction on the innocent. Association in complicity for purposes of common purpose must include having “the necessary intention” in relation to the complicity.
Finally, because the finding of guilt in respect of the count of participation in an unprotected strike was left intact, the Constitutional Court held that an appropriate order is remittal to the Labour Court for a reconsideration of an appropriate sanction in respect of that count. The Court took the view that, without the aggravating factor of a severe assault, the sanction might differ. This being a labour matter, costs were not awarded..
The Full judgment here