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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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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