Business Law & Tax: August 2021

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BUSINESS LAW &TAX

AUGUST 2021 WWW.BUSINESSLIVE.CO.ZA

A REVIEW OF DEVELOPMENTS IN CORPORATE AND TAX LAW

When all for one backfires

Employees present when an •assault took place are dismissed Itayi Gwaunza & Claire Nolan ENSafrica

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group of 50 striking employees confront their manager in his office. An altercation ensues, which culminates in the manager being violently assaulted. Only five of the striking employees are caught “red-handed”, having been identified as the perpetrators of the violent assault. The rest are only identified as having been there when the assault took place. Can the employer dismiss all of the striking employees who were present when the violent assault took place, including the 45 striking employees who happened to be there, but who did not themselves carry out the assault? According to the doctrine of common purpose, a person who associates themselves with the acts of a criminal perpetrator is criminally liable. This was considered in Numsa obo Aubrey Dhludhlu & Others and Marley Pipe Systems (SA) (Pty) Ltd. During the course of an unprotected strike, several Marley Pipe

Systems employees surrounded the head of human resources, Mr Steffens, pushed him out of a glass window, threw rocks at him and punched and kicked him while he lay on the ground. He suffered injuries to his face, his right arm and body. Marley Pipe Systems took disciplinary action against 148 employees. It had identified these employees from photographic and video evidence of events on the day, clock cards used in its payroll system which recorded the names of employees who had arrived and remained at work, job cards used at workstations and through the evidence of the employer’s witnesses. Using this evidence, 12 employees were identified as having participated in the assault of Steffens. The remaining employees were found to have acted with common purpose on the basis that they: ● Had associated themselves with the assault through their presence at the scene; ● Had encouraged those involved in the assault; ● Had failed to come to the assistance of Steffens, ● Had rejoiced in the assault; ● Had held placards demanding that Steffens be removed from his post.

WORKPLACE ETIQUETTE

/123RF — MTKANG Following a disciplinary inquiry, Marley Pipe Systems dismissed all 148 employees for participating in an unprotected strike and for the assault on Steffens. The National Union of Metalworkers of SA (Numsa), acting on behalf of the 148 employees, pursued an unfair dismissal dispute in the Labour Court. Relying on the doctrine of common purpose,

the Labour Court found that the dismissal of all 148 employees was fair. By the time the dispute reached the Labour Appeal Court, Numsa had, in effect, accepted that the dismissal of the 12 employees who were identified as having participated directly in the assault of Steffens was fair. It was also accepted that the dismissal of 95 employees, who had been

identified as having been present when the assault took place, and as having therefore associated themselves with the assault, was fair — this being based on the doctrine of common purpose. However, Numsa contended there was no evidence that the remaining 41 employees had been at the scene of the assault, that they had been aware of the assault, that they had intended to make common cause with the 12 employees, or that they had performed an act of association with them. Accordingly, Numsa pursued an appeal on behalf of only 41 of the 148 employees on the basis that Marley Pipe Systems had failed to prove the 41 were guilty of assault and their dismissal was fair based on the doctrine of common purpose. The Labour Appeal Court referred to the remarks of the Constitutional Court in a previous matter (that did not directly deal with the doctrine of common purpose), the National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others: “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 estab-

lish 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.” According to the Labour Appeal Court:

THE DOCTRINE OF COMMON PURPOSE CAN BE AN EFFECTIVE TOOL IN JUSTIFYING THE FAIRNESS OF THE DISMISSAL “In Dunlop, the [Constitutional] Court stated that association with the misconduct before it commenced or after it ended may be sufficient to establish complicity in the workplace context, with it not required that an employee be present at the scene. However, prior or subsequent knowledge of the misconduct and the necessary intention in relation to it is still required. This moves the requirements to prove common purpose in the workplace outside of the strict requirements set out in the case law from Mgedezi. “It allows an employee to be held to account for collective misconduct where the employee associated with the CONTINUED ON PAGE 2


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