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Assault does not always merit dismissal

Ivan Israelstam

Assault at the workplace, by one employee on another, is normally seen as very serious misconduct. This is mainly because of the harm that is, or could be, caused to the assault victim and to workplace harmony.

Despite this, employers are often in the wrong when they dismiss employees who are accused of assault, even if it’s serious.

Why do employers often incorrectly dismiss employees accused of assault?

Too often, the employer reacts emotionally to an alleged assault because of the severe nature of the offence. This takes the employer’s attention away from the cold, hard facts of the case which will be assessed to see if 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.

How should you react if you suspect one of your employees has assaulted another?

If you, as an employer, believe one of your employees has not kept to your rules, and has assaulted another employee, investigate the allegations thoroughly. This is 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.

What must you do if your employee disputes his dismissal?

If you end up dismissing an employee, and he disputes his dismissal at the CCMA, the onus is on you to prove that the dismissal was fair. If you don’t convince the arbitrator, you could be forced to reinstate your employee and/or pay him a year’s salary or more!

4 cases which show these principles in action

1.    In Vereeniging Refractories vs NETU obo Botes (1998 3 BALR 377), the employee was dismissed for assaulting a labourer. The supervisor said that, when he had questioned where the labourer was, 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 as to 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 supervisor 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.

2.    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 Boymans was guilty of assault and declared the dismissal was unfair.

3.    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 when he tried to prove his case. The dismissal was therefore found to be unfair and the employee was reinstated.

4.    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 dismissal too harsh and the employee was reinstated.

8 take-homes from these cases

1.    Hitting, pushing or other physical acts are not always considered assault. You, as the employer, have the legal duty to prove that your employee was in fact guilty of assault.

2.    Self-defence is accepted as a mitigating factor and could therefore mean that dismissal is uncalled for.

3.    At arbitration, you are highly unlikely to succeed with proving your case if you don’t identify, prepare and bring witnesses to convince the arbitrator that your misconduct allegations are valid and the dismissal was fair.

4.    You can’t rely on hearsay evidence to prove a case.

5.    If your employee assaulted someone because he was provoked, and you dismiss him because of this, this dismissal could very likely be regarded as too harsh.

6.    Where your employee alleges that the assault was provoked, you must disprove this claim to convince an arbitrator that dismissal is justified.

7.    Arbitrators will not hesitate to reinstate employees who are guilty of assault, with full back-pay, if you don’t do your homework properly.

8.    If you want to dismiss an employee, you must first:

-    Thoroughly investigate the situation;
-    Collect solid proof; and
-    Present this proof in a watertight manner.