An assault at the workplace by one employee on another is normally seen as very serious misconduct. This is primarily because of the harm that is or could be caused to the victim of assault and to workplace harmony.
Despite this, employers are often wrong in dismissing employees accused of assault even if the assault is a serious one. The reason for this is that the employer too often reacts emotively to alleged assault due to the grievous nature of the offence. This diverts the employer’s attention from the cold, hard facts when assessing whether dismissal is appropriate in the circumstances.
This can be disastrous for the employer because section 188(1)(a) of the Labour Relations Act (LRA) makes it clear that the employer cannot fire an employee without good cause.
Therefore, if you are an employer and you believe your employee has failed to keep to your rules you must carry out an in depth misconduct investigation into the allegations. This is in order to gather solid proof that the employee is in fact guilty and deserves to be dismissed as opposed to some other, more appropriate corrective action.
Should the employee dispute a dismissal via the CCMA you would have the onus of proving that the dismissal was fair. If you fail to convince the arbitrator of this you could be forced to reinstate your employee and/or pay him/her a year’s salary or more!
A case in point is that of Vereeniging Refractories vs NETU obo Botes (1998 3 BALR 377. In this case the employee was dismissed for assaulting a labourer. The supervisor said that, when he had questioned the labourer’s whereabouts, the labourer had sworn at him, hit him and kicked him. When the supervisor saw a knife in the labourer’s hand he pushed the labourer in self-defence.
The arbitrator found that it was uncertain exactly what had happened but that the supervisor’s version of events could have been true. The arbitrator further found that it was the employer’s duty to prove that the employee was guilty. In this case it was found that the employer had failed to prove that the supervisor had not acted in self-defence. The arbitrator therefore found the dismissal to be unfair and reinstated the employee.
In FEDCRAW obo Boymans (1999 8 BALR 900 CCMA) Boymans was dismissed for assault. She brought witnesses to the arbitration hearing to show that she had merely acted in self-defence. The employer brought no witnesses to the arbitration hearing and instead entered a written statement into evidence. The arbitrator found that the employer had not proved that the employee was guilty of assault and declared the dismissal to be unfair.
In NUM obo Mbalane vs Bank Colliery (2000 3 BALR 358) Mbalane was dismissed for assaulting a child. However, the arbitrator found that the employer had relied on hearsay evidence in trying to prove its case. The dismissal was therefore found to be unfair and the employee was reinstated.
In Metrorail vs SATAWU (2000 10 BALR1208) an employee assaulted a manager. The arbitrator agreed that the employee had been guilty of assault but accepted that the reason for the assault was not, as alleged, his reluctance to work under a fellow employee. Instead the arbitrator found that the victim of the assault had made racist remarks which had provoked the assault. This mitigating circumstance rendered the penalty of dismissal too harsh and the employee was reinstated.
Employers should take note of the following principles emanating from the cases described above:
• Assault does not automatically merit dismissal of the accused
• Hitting, pushing or other physical acts do not always constitute assault. The employer has the legal duty to prove that the employee was in fact guilty of assault
• Self defence is accepted as a mitigating factor and could therefore mean that dismissal is uncalled for
• At arbitration the employer is highly unlikely to succeed with proving its case if it fails to identify, prepare and bring witnesses to convince the arbitrator that its allegations of misconduct are valid and that the dismissal was fair
• Hearsay evidence cannot be relied upon to prove a case
• Provocation is likely to render dismissal for assault to be too harsh a penalty
• Where the employee alleges that the assault was provoked the employer needs to disprove this claim in order to convince an arbitrator that dismissal is justified
• Arbitrators will not hesitate to reinstate, with full back-pay, employees guilty of assault if the employer has failed to do its homework properly
• Dismissal of an employee must be preceded by a thorough investigation, collection of solid proof and the presentation of such proof in a watertight manner
• If you, the employer, are not a labour law expert you should acquire intensive training or hire someone expert in the law to handle the disciplinary process.
To book for our Johannesburg seminar on DEFEATING THE DANGERS OF DISMISSAL please contact Ronni on firstname.lastname@example.org or 0845217492.
Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Web address: www.labourlawadvice.co.za. This article first appeared in The Star.