Assault as a form of misconduct

Reference LLA 720

LLA 720 Assault as a form of misconduct

Synopsis

Context: The article discusses the elements of assault as form of misconduct

Content: The article explains the elements of assault and the defences of provocation and self defence

Details

Author: Sean Molony

Reference

LLA 720

Copyright: Labour Law Academy (Pty ) Ltd and Sean Molony

Order copies from sean@labourlawacademy.co.za

Book

This article is an extract from “A Practitioner’s Guide to Unfair Dismissal”, by Sean Molony, available from www.labourlawacademy.co.za

Training

A training course is in the process of being developed. Go to www.labourlawacademy.co.za

Updated on 10 November 2020

 

 

Table of Contents

  1. Introduction
  2. The elements of assault
  3. It was the employee who committed the assault; there was no assault
  4. The degree of contact
  5. The intention to assault
  6. Relevance of the assault to the workplace
  7. Reasonableness, validity, awareness of the rule and consistency in its application
  8. Provocation
  9. Self defence
  10. The appropriate sanction

 

  1. Introduction

Assault is “the intentional application of unlawful force to the person of a human being”.[1] The contact could be either directly, or indirectly applied. [2] The degree of the assault can vary from a touch to the infliction of severe physical injury [3] or no injury at all. [4]

In order to dismiss an employee fairly on the ground of assault, the employer must show, on a balance of probability, that the employee contravened the workplace rule against assault, in other words committed the assault alleged. In order to do so, the employer must prove each element.

  1. The elements of assault

Road map to disputes regarding an allegation of assault

 

What the employer must prove Employee’s defences
The employee committed the assault ‘It wasn’t me’

There was no assault.

The assault was unlawful, or contrary to a workplace rule The employee acted in self defence

The employee was provoked

Contact to the body or person of another

Threat of harm or assault

There was no contact

No threat was made

Intentional conduct Mistake, error or negligence

 

In the discussion which follows the elements which need to be proved by the employer, including the elements of substantive fairness are canvassed first followed by an explanation of the possible defences an accused employee could raise.

The question of whether an employee assaulted another person is one of fact, and all the above elements of assault as well as the substantive aspects must be established by the employer in the investigation, while only those placed in dispute need to be established in the arbitration.

Practitioners should note that the finding of a criminal court on the charge of assault is not binding on the employer, nor should an employer delay conducting a disciplinary hearing or refuse to do so because a criminal charge has been laid.

3.       It was the employee who committed the assault; there was no assault

It may be clear that the complainant was assaulted, but the question is who assaulted him or her. Unless there is evidence showing that it was probably the employee who is the subject of the investigation who committed the assault the employee can not be fairly dismissed. For this reason identification of the assailant is crucial.

Problems arise where the assault was between an employee and a person who is not an employee in that it may be difficult to establish what took place during the incident as the other party may be unwilling or unable to make a statement. The employer will then have to rely on circumstantial evidence, or on statements from other witnesses.

It may be necessary to show how the employee was identified as the person who committed the assault, particularly when there were a number of persons involved and each blames the other. [5]

This issue was central to the facts in Food & Allied Workers Union & others[6] where the LAC said:

There was no direct evidence linking any of the appellants to any particular act in relation to the assault, and the respondent’s case was based on inference alone. None of the appellants gave evidence, either in the court a quo or in the course of the disciplinary hearing. The attitude adopted by the appellants throughout was that it was for the respondent to establish their complicity, and that no case had been made out against any of them which called for a reply.

However, where an employee fails to give evidence it can not then be assumed that constitutes proof of what he is alleged to have done. Where the evidence against an accused employee, though not conclusive, may be such that an explanation would be expected, then a failure to provide an explanation shifts the balance of probability against the accused employee. This is the case where the inference sought to be drawn is consistent with all the proved facts. If it is not, the inference cannot be drawn.

In Scaw Metals(Pty) Ltd [7] the employee’s defence was to deny the assault. The accused employee’s case was that the assault could not have taken place because he did not even see his manager [the person he was alleged to have assaulted] on the day in question. He argued that he and his manager had an ‘unhealthy relationship’ and he maintains that this acrimonious relationship was the reason the manager was fabricating the charge of assault to ‘get rid’ of him – there was a conspiracy to get rid of him. A total of six witnesses were called at the arbitration.

This case provides an example of best practice for chairpersons and arbitrators when faced with a similar case. The Court noted with approval that the arbitrator:

…….. dealt with the issue of the credibility of witnesses, and based on this he accepted the evidence of the first respondent. The reasons given by the commissioner are that he properly considered all of the evidence before him and [came to his conclusions] on a proper construction of the evidence, including the totality of all of the witnesses’ oral testimonies, the medical reports, the photographs, the clock report from the company, evidence led as to the structure of the office and evidence as to the antagonism [the accused employee] felt towards [his manager] wrongly believing that [the manager] was the reason for the rule regarding overtime. [My editing]

The arbitrator’s finding was that the accused employee had assaulted his manager. The Court said this was the ‘most natural and plausible conclusion’ to be drawn from the evidence.

  1. The degree of contact

While a threat may be an assault in law, in terms of the Code of Good Practice: Dismissals, physical assault is a form of serious misconduct.  The term physical assault implies some contact with the body of the complainant. The degree of contact has an impact on the appropriateness of the sanction to be applied.

There is a danger in absorbing criminal law aspects of assault into employment law, such as ‘assault with intent to do grievous bodily harm’. In some cases this form of assault is regarded as serious misconduct for which dismissal is appropriate, while “ordinary” assault is less serious.[8] It is submitted that there is no basis for such a distinction in employment law at all.

The arbitration of Saal [9] illustrates this point. The arbitrator stated-

“According to the complainant she was hit by the fist and according to the employee he hit her with the open hand. As already indicated without medical evidence I cannot make a finding as to whether the complainant was indeed hit with the fist or with the open hand. I am however of the opinion that this is immaterial as it is clear from the employee’s own testimony that the assault on the complainant was indeed a violent one. According to the employee’s own testimony he hit the complainant three times with the open hand after which he immediately noticed that her lip was swollen and bleeding and that her eye was swollen as well. I think it is therefore clear that the employee assaulted the complainant with the intent to do grievous bodily harm”.

  1. The intention to assault

The intention of the accused employee is also an important element which can usually be proved from the facts of the assault.[10]

For example, if the employee throws a punch but misses, this would be regarded as ‘attempted assault’. While in such a case there was no contact with the body of the complainant, the intention of the accused employee was to make contact. In the employment relations context such attempted assault is as serious as if the punch had made contact with the body of the complainant.

However if the facts were that the accused employee was swinging a broom handle around his head in a fit of exuberance, and another employee opened a door, did not see what was going on and walked into the broom handle, the actions of the accused employee may be negligent but not intentional.[11]

  1. Relevance of the assault to the workplace

One of the substantive issues which the employer will have to prove is whether the assault was relevant to the workplace. The key issue here is that if the assault is not relevant, then the decision to dismissal the accused employee is substantively unfair. In this section we examine how the courts and arbitrators have dealt with this issue.

In Moloto [12] the evidence was that the assault took place outside of the workplace. The arbitrator found that the fact that the assaulted employee could not work for an extended period was sufficient to provide a nexus to the workplace. In National Union of Mineworkers & others[13] the fact that the assault took place on a bus in transit from work to home was held to be conduct relevant to the workplace’, over which the employer had jurisdiction. The assault of a superior which took place off mine premises and outside working hours, and which arose out of a workplace grudge, was held to be sufficiently related to work for employer to hold disciplinary investigation.[14]

The Labour Court in Foschini Group (Pty) Ltd[15] the victim was stabbed outside of the company premises. The court referred with approval to the judgment of the LAC in SA Polymer Holdings (Pty) Ltd[16] where it was stated:

‘We agree with the submission that ostensible criminal conduct on the part of an employee off the employer’s premises and not during working hours does not preclude the employer from assessing such conduct in the context of the actual or potential effect in the workplace and to the personnel and the property of the employer. The fact that the conduct is not directed at or against fellow employees is equally immaterial. Whether such conduct had the effect of destroying or seriously damaging the relationship of the employer and employee, depends on a number of factors. These include the nature of the criminal conduct, the nature of the work or services performed by the employee, the potential effects which the conduct may have on the employer’s business, and in particular its profile in the eyes of its clients and the public, and the impact which the conduct may have on the relationship between the employer and the employee, and between the employee and his co-workers. These are broad outlines and are not intended to be exhaustive.’

7.       Reasonableness, validity, awareness of the rule and consistency in its application

Assault at the workplace negatively impacts on the employment relationship between both the employer and the employees involved, and breaches the common law duty of respect due to the employer, and other persons.  As such the rule is considered to be both valid and reasonable, and is one which employees could  reasonably be expected to be aware of. The rule must also be applied consistently, both historically and contemporaneously.

Some company disciplinary codes list “fighting” as a form of misconduct separate to assault; in fact there is no distinction. ‘Horseplay’, a quaint  term which is often also listed as a form of misconduct is probably distinguishable as there is a form of consent between the parties, and would therefore attract a lesser sanction. If the company code provides that a threat of assault is serious misconduct and recommends dismissal, this would usually be upheld. [17]

  1. Provocation

Where an employee assaulted a supervisor who had made racist remarks, the question of whether the employee had been provoked arose. The arbitrator found that the employee had overstepped the bounds of provocation and was not a defence to the allegation of assault. However, the fact that racist remarks were made meant that dismissal was not appropriate and a final written warning was held to be the appropriate sanction.[18]

In an arbitration[19] the employee was alleged to have assaulted a customer after the customer had accused him of shortages, sworn at him, and then slapped him. The finding by the arbitrator that while assault of customers by employees was not to be condoned, and would generally justify dismissal, the provocation to which the employee had been subjected served as a mitigating factor, and that the sanction of dismissal was too severe in the circumstances, was upheld on review.

In Tedco Plastics (Pty) Ltd[20]  the court had occasion to discuss provocation as a defence to assault in the workplace. The court said:

Provocation is recognized in our criminal law and law of delict as a basis for excusing or mitigating the consequences of what would otherwise clearly be criminal or delictual conduct. The debate has not been settled as to whether provocation removes the unlawfulness of the conduct, or merely mitigates (or extinguishes) the punishment or damages arising therefrom. (See Neethling, Potgieter & Visser Law of Delict  (3 ed) at 91-2 and Snyman Criminal Law  (2 ed) at 183ff.) Whatever the correct legal categorization, however, the very fact that a person’s actions were a reaction to the conduct of another does not mean that the law will come to their aid. Certainly, in the case of delictual liability, it appears that two requirements will have to be met, namely, that the provocative conduct must be such that the reaction to it by way of physical assault was reasonable, i.e.  would a reasonable person in the position of the person have acted as he did in the face of the provocation; and, that the conduct must be an immediate and reasonable retaliation, i.e.  it must follow immediately on the provocation and not be out of proportion to the nature and degree of the provocative behaviour (Neethling et al at 94).

The court noted that the factors which would have justified reliance on provocation were not present because the employee looked to have been the aggressor, the employee’s response to the attack was not immediate, and the level of violence used was far in excess of that used against him. The court held that no reliance could be placed on the defence of provocation in the circumstances.

  1. Self defence

In the leading case of Clarence[21] the LAC  explained private defence [i.e. self defence] in the context of labour relations. The court relied on academic authors in the field of criminal law and concluded that in order to succeed in the defence of self defence the employee must:

  • Be faced with an unlawful attack which has commenced, or is imminently threatening, upon her or somebody else’s life, bodily integrity, property or other interest which deserves to be protected; and
  • Show that the defensive act is necessary to protect the interest threatened; and
  • The defensive act must be directed against the attacker; and
  • The defensive act must not be more harmful than necessary to ward off the attack.

The test for private defence is objective – would a reasonable man in the position of the accused have acted in the same way? If the employee subjectively believed that his life or property was in danger he may however be held to have acted negligently rather than with intention.

If the employee acts in self defence i.e. satisfies all the elements above- his conduct is lawful – that is he cannot be held to have committed misconduct.

An example best practice with regard to the defence of self defence is found in the award in In Pick ‘n Pay Retailers (Pty) Ltd (Gallo Manor Branch) and Commercial Catering & Allied Workers Union of SA [22]  in which the arbitrator considered the defence of self defence, and suggested that the correct approach is to:

“…. ask whether the grievant reasonably believed he was being attacked; if so, he would have been entitled to use reasonable force to defend himself.  The defence has   three elements: the victim must believe he is being attacked, his belief must be reasonable, and the means he uses to repel the attack must be reasonable.  Because the events must be seen through the victim’s eyes, I must eschew a so-called arm-chair attitude; I must rather try to imagine how I, as a supposedly reasonable man, might have behaved in the  circumstances.  I must consider what the grievant knew and saw at the time of the incident, and decide whether his actions, based on that knowledge and perception, was reasonable in the circumstances”.

Another award which is both interesting and helpful is  found in Solidarity on behalf of Armstrong[23]. The facts in that case were that the accused employee conducted an inspection, as he was required to do, of the complainant’s [a Mr D] aircraft. Mr D responded in a hostile and racist manner, pushed his finger against the employee’s nose, spraying spittle onto him and shouting racist and abusive words at him. The employee responded by pushing Mr D away with the flat of his hand. The employee’s witness supported his version. The witnesses of the employer were not present at the place where this incident took place but were in an office some distance away. Three months after the incident a new director of the company was appointed and only then was the employee charged. The arbitrator relied on the Clarence case, pointed out that the test for self defense requires the arbitrator to examine objectively the nature of the attack and defense. These must be judged from an external perspective, rather than the accused’s perceptions and his assessment of the position at the time that he resorted to private defence. When applying this test, an arbitrator or chairperson must be careful to avoid the role of an armchair critic, wise after the event.[24]

  1. The appropriate sanction

Item 3 of the Code of Good Practice: Dismissal states: “Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are ………….physical assault on the employer, a fellow employee, client or customer…..”.

As discussed above, dismissal is generally the appropriate sanction if the evidence establishes the probability that an assault, or attempted assault took place. Factors which may in some cases lead to another sanction would include the circumstances in which the assault took place, and extent and nature of the contact, or attempted contact. A push, or soft tap, on the body of another person may, for example, mean that dismissal is not appropriate.

Arbitrators and chairpersons should note that the defences discussed here are complete defences. Thus if the facts establish a lack of intention, provocation or self defence, then a finding of ‘not guilty’ is appropriate, which also applies if no assault is proved.

 

ENDNOTES

[1]  See S v Ntuli 1975 (1) SA 429 (A)

[2] Abrahams v Pick ’n Pay Supermarkets (OFS) (Pty) Ltd (1993) 14 ILJ 729 (IC) as an example of indirect assault. In that case the manager forced employees to remain in a freezer for half an hour without protective clothing.

[3] Metal & Allied Workers Union v Feralloys Ltd (1987) 8 ILJ 124 (IC). .

[4] Where a petrol bomb was thrown at an employee while on strike, the fact that the bomb failed to explode was held not to be relevant, and the sanction of dismissal  was held to be fair in South African Breweries (Isando) v FAWU obo Makhuba [1998] 2 BALR 232 (IMSSA)

[5] See ‘A Practitioner’s Guide to Evidence in Investigations and Arbitrations’ available at https://labourlawacademy.co.za for assistance in this regard.

[6] Food & Allied Workers Union & others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC)

[7] National Union of Metalworkers of SA on behalf of Mathonsi v Scaw Metals & others (2020) 41 ILJ 254 (LC)

[8] See for example section 17 of the Employment of Educators Act 76 of 1998. It is of concern that an educator may only be dismissed for assault with intent to do grievous bodily harm, while other employees may be fairly dismissed for a ‘mere’ assault. This is an example of criminal law being incorporated into employment law without justification.

[9] Saal v De Beers Consolidated Ltd [2000] 2 BALR 171 (CCMA)

[10] Remember ‘proof’ in the context of hearings and arbitrations is on a balance of probability. It is thus important that the criminal law element of ‘mens rea’, which goes to proof beyond a reasonable doubt, is not imported into employment law.

[11] This scenario is based on the facts of a hearing the writer chaired.

[12] Moloto and Gazelle Plastics Management (2013) 34 ILJ 2999 (BCA)

[13] National Union of Mineworkers & others v East Rand Gold & Uranium Co Ltd  (1986) 7 ILJ 739 (IC),

[14] Van Zyl v Duvha Opencast Services (Edms) Bpk  (1988) 9 ILJ 905 (IC)

[15] Foschini Group (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2001) 22 ILJ 1642 (LC)

[16] SA Polymer Holdings (Pty) Ltd t/a Megapipe v Llale & others (1994) 15 ILJ 277 (LAC)

[17]       POPCRU obo van Wyk / Department of Correctional Services [1999] 5 BALR 562 (CCMA)

[18]       Metrorail / SATAWU [2000] 10 BALR 1208 (IMSSA)

[19]       Metro Cash & Carry Ltd v Le Roux NO & others [1999] 4 BLLR 351 (LC)

[20]       Tedco Plastics (Pty) Ltd v National Union of Metalworkers of SA & others (2000) 21 ILJ 2710 (LC)

[21] Clarence v National Commissioner of the SA Police Service (2011) 32 ILJ 2927 (LAC)

[22] (1990) 11 ILJ 1352 (ARB)

[23] Solidarity on behalf of Armstrong and SA Civil Aviation Authority (2013) 34 ILJ 712 (CCMA)

[24] The arbitrator held the employee’s dismissal to be unfair. This arbitration illustrates the now common abuse of disciplinary processes by management, who use it as a means to exercise their power, a chairperson who follows instructions from management, ignores central facts, relies on irrelevant considerations, and fails to apply its own disciplinary code.