In National Union of Metalworkers South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (Casual Workers Advice Office as Amicus Curiae), the Constitutional Court accepted that the doctrine of common purpose could find application in disciplinary matters. This doctrine holds that a person may be guilty of a disciplinary offence even if they did not commit the deed that constituted the offence. This is the case if the employee acted in common purpose with the person committing the offence, and in some way associated themselves with the actions of the person committing the offence. It stated the following:
"[46] ... 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 establish 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."
It went on to point out that there is a failure to appreciate that there are "many ways, direct and indirect, for employees to participate in and associate with the primary misconduct."
The application of this doctrine was considered in the recent Labour Court judgment in Worldwide Staffing (Pty) Ltd v Metal And Engineering Industries and Others.
Facts
In this matter two employees employed by Zest Weg Electric (Pty), a temporary employment service, participated in a protected secondary strike. The picketing rules applicable to the strike prohibited the display of placards or similar items that contained defamatory words or pictures against any director, agent or employee of the employer. Despite this prohibition, the two employees in this matter joined a group of other employees displaying placards with messages such as "cruel corrupt Zest," "abuse at Zest," "one must die," and "wafa afa" (translating to 'whoever dies, dies.'). They also joined the group when they marched around the employer's premises in breach of the picketing rules.
The two employees were dismissed for associating themselves with the employees who had carried the placards and for picketing outside the designated picketing areas. Aggrieved by this decision, the employees challenged the fairness of their dismissal. The arbitrator found their dismissals to have been substantially unfair and ordered their reinstatement with retrospective effect.
The employer then launched an application in the Labour Court to review and set aside the award.
The Court appears to have accepted that the doctrine of common purpose applied in this case – the employees had "voluntarily aligned" themselves with the employees carrying placards. It rejected their argument that their dismissal was unfair because they were not the ones carrying the defamatory placards. It pointed out that evidence was presented to the arbitrator to the effect that an employee could have left the picketers at any time.
Comment
The Court's finding that the doctrine of common purpose could find application in the circumstances of this case seems correct. Of more interest is the Court's statement that the employees concerned had had the duty to "actively distance" themselves from the conduct of others. In support of this finding the Court referred to the Constitutional Court's finding in Commercial Stevedoring Agricultural and Allied Workers Union and Others v Oak Valley Estates and Others where the Constitutional Court accepted that, in certain circumstances, a duty to disassociate oneself from the conduct of others may arise. However, this decision must be read with the Constitutional Court's finding in its later decision in National Union of Metalworkers of SA on behalf of Dhludhlu & others v Marley Pipe Systems (SA) (Pty) Ltd where the Court appears to have found that the duty to disassociate only applies in the situation where an employer is seeking to interdict strike misconduct and that an employer cannot rely on duty to disassociate where the employer seeks to discipline an employee.
Perhaps what is also important to highlight in this judgment is the Judge's remarks reminding employees that protected strikes should aim to extend collective bargaining in labour disputes, rather than serve as a license for intimidation or tarnishing an employer's reputation.
Reviewed by Peter le Roux, an Executive Consultant in ENS' Employment practice.
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