This blog was co-authored by Felix Le Roux, candidate attorney

On 22 August 2022, the Constitutional Court (CC) upheld an appeal by the National Union of Metal Workers of South Africa (NUMSA) on behalf of 41 employees who were dismissed for acting in common purpose of assault during a strike, and found that their dismissal was substantively unfair.

The case concerned the assault of the employer’s head of human resources during an unprotected strike. The question was whether the 41 employees were individually guilty of misconduct through the doctrine of common purpose, in circumstances where they had not been individually identified as being present at the scene of the assault. The Labour Appeal Court (LAC) had held that, in order to avoid liability through common purpose, the employees needed to:

  • Take positive steps to disassociate themselves from the acts of the perpetrators; and
  • Intervene to stop the assault from taking place.

In a unanimous judgment, the CC overturned the decision of the LAC. Having considered the two requirements set by the LAC above, the CC held that “there is no basis whatsoever for the imposition of such [obligations]”. Although one might be bound by such requirements morally, the CC stated that no such obligations existed legally.

The CC also disagreed with the LAC finding that common purpose was established by those present rejoicing, on the basis that the employees had already been marching, dancing and singing within the premises before the assault took place. Accordingly, the singing and dancing could not be construed as an act of approval or association.

The CC confirmed the principle previously established in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others 2019 (5) SA 354 (CC) (Dunlop), where the CC had held that 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”. In other words, mere presence at the scene of the violence does not establish common purpose. A link between the violence and each individual employee must be proven on a balance of probabilities, and it must be shown that the employee intended to associate with the violence. In circumstances where no act of association on the part of the employee is proven, the individual employee is not expected to take positive steps to disassociate or intervene.

The CC judgment confirms the importance of thorough investigation following an incident of misconduct. The employer must prove the participation (whether directly or through common purpose) of each individual employee. The effective use of modern technology such as automated access control and reasonable CCTV surveillance is therefore an indispensable part of every employer’s operations.

The case is National Union of Metal Workers of South Africa obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30.