ASSAULT is an understandably emotionally charged, category of gross misconduct which, more often than not, justifies dismissal. Assault is a very serious workplace offence, however, it need not always warrant dismissal.
In the arbitration award in Saccawu obo A Carolus v Freshmark (Case number 16835-18), it was noted that: “There is no doubt that the rule against assault is an important one. An employer is obliged to provide its employees with a safe working environment and an assault by one employee on another (whether a permanent employee or contracted worker) causes a breach of this duty. For this reason, the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) lists assault as one of the valid grounds for dismissal for a first offence with no requirement for prior warnings.”
In Bombela Operating Company and Jackson Mthukwane, NO & others JR 1922/13, the Labour Court held that an “assault takes a variety of forms, and the legal requirements are the intentional and unlawful application of physical force, however slight, to the body of the complainant or the threat that such force will be applied. In this case, there was such application of physical force. By its very nature, assault is a serious form of misconduct. This, however, does not imply that every case of assault should be met with dismissal, in that it acknowledges that defences such as provocation may negate the unlawfulness of that conduct”.
In this case, the Court concluded that the order of reinstatement of the dismissed employee should have been accompanied by some form of sanction. It upheld the reinstatement of the employee, ordering that he be issued with a final warning, rather than be dismissed. In a January 21, 2020 arbitration award, the Commission for Conciliation, Arbitration and Conciliation (CCMA) upheld the notion that while assault is clearly a form of gross misconduct, it will not always warrant dismissal. The arbitration award in Petheni Andrews Mhlabeni v Rainbow Chicken Farms (Case number NWRB2867-19), the employee, a machine operator, had been dismissed for assault.
One of the employee’s colleagues had grabbed him by the lapel of his coat, after which he then struck him in retaliation. As noted in the judgment. “The footage clearly shows (the colleague) grabbed (the employee’s) coat. (The employee) retaliated by striking (his colleague) with both hands on either side of his head. Both then disengaged. Had (the employee) then struck (his colleague), I would have no hesitation in agreeing with the respondent that dismissal was the appropriate penalty. However, I am required to find whether the sanction of dismissal was fair in these circumstances.”
That said, John Grogan in his book, Dismissal wrote that: “Assault is generally accepted as a valid ground to dismiss the assailant. The legal requirements for the offence are the intentional and unlawful application of physical force, however slight, to the body of the complainant or threat that such force will be applied. In the employment context, factors that should be considered before imposing a sanction on an employee for a proven assault include the circumstances in which the assault took place, the degree of force used or the gravity of the threat, the relationship between the employee and the complainant, and the effect of the assault on the interpersonal relations and the business of the employer.”
Like pretty much all misconduct cases, each individual assault case needs to be assessed on its merits. No two cases are the same; they may be at face value, but on closer scrutiny, each case has its own unique set of circumstances. Dismissal for assault was also considered too harsh in the MEIBC arbitration award in Numsa obo A Ntlabezi v Betafence SA (Case number MEWC 10814) in which it was held that, on a balance of probabilities Ntlabezi was guilty of a minor assault after extreme provocation from Swartz. “However, such provocation was not taken into account by the employer and a sanction short of dismissal should have been applied.”
Professional advice should be sought if in doubt as to the seriousness of such cases.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 086 111 5 375.