Violence during strikes is a blight on the constitutional gains provided to both employers and employees under the Labour Relations Act and our Constitution.  Innocent employees and employers have for decades endured an unfair disadvantage against what is plainly criminal conduct on the part of striking employees. Violence, which is often associated with significant damage to property, also subjects innocent parties to fear, intimidation and sadly injury and all too often death. This violence has the ultimate effect of inhibiting peoples individual right to dignity and freedom of association.  The challenges of advancing economic development, social justice, labour peace and workplace democracy, the foundation stones and the purpose of the Labour Relations Act (LRA) 66 of 1995 are right at the forefront of this dialogue. 

The Labour Appeal Court’s dismissal of an appeal by NUMSA and 41 of its members, whose dismissal had been upheld by the Labour Court for strike violence on the basis of the doctrine of common purpose has been overturned by the Constitutional Court in the case of NUMSA obo Aubrey Dhludhlu and 147 Others and Marley Pipe Systems (SA) (Pty) Ltd. It did so by finding that the Labour Court created new rules on proof of common purpose.

The law of common purpose has developed in the realm of employment law to allow an employer to protect its business by dismissing an employee who was not necessarily directly involved in misconduct. To successfully rely on the doctrine an employer must show that the employee:

  1. must have been aware of the wrongdoing;
  2. must have intended to make common cause with those who actually perpetrated the wrongdoing;
  3. must have manifestly indicated an association with the conduct of the others; and
  4. must have foreseen the possibility of the impact or consequences of the wrongdoing.

At essence here in respect of the 41 individual appellants in the Constitutional Court, was that they were never positively identified as having been directly involved in the serious assault of a Human Resources manager, and hence never seen doing anything. It was accepted as common cause on the probabilities however that they were present and were part of the striking employees who were all part of a larger group, and that they continued to sing and dance while watching 12 of their colleagues, who were positively identified as having participated directly in the assault.

The Labour Appeal Court, in dismissing the appeal of these 41 dismissed employees on the basis of the doctrine of common purpose reasoned that to escape liability for the assault these employees should have intervened to stop the assault, and should have disassociated themselves from the assault in some way either before, during or after.

The Constitutional Court, although accepting this on a moral level, criticised the LAC on the basis that there was no legal obligation on the 41 to have done so. It went on to conclude, through reliance on various decisions that mere presence and watching does not satisfy the requirement of common purpose. An intention in relation to the violence is required. Merely being there cannot constitute association. There needs to be active association.    

That a fine line has been crossed here, which may well place the doctrine of common purpose beyond practical use, is that the Constitutional Court, although finding it morally reprehensible that the singing and dancing continued as the assault was taking place, did not believe that this conduct sufficed to support a finding that the employees were associating themselves with the assault.

Sadly, when it comes to protecting the constitutional right to strike (and a failure to weigh up the constitutional rights to dignity, safety and life when it comes to strike violence), our apex court appears to have elevated the test for culpability when it comes to strike violence beyond that of a balance of probabilities, the test applicable between private individuals such as an employer and employee. Rather, it appears now to be more akin to the criminal test of beyond reasonable doubt.

What this decision sadly reflects is that an employer cannot expect of its employees, as is the case here where a much larger group than the 12 who committed the assault watched, to have acted in the common good and on the basis that the law demands an orderly and law-abiding workplace where employees and employers are free from been threatened and intimidated.   

It is perhaps small consolation for employers that the Constitutional Court noted, employers must ameliorate this burden of proof through the use of modern technology, such as access control and CCTV cameras, and we might add, artificial intelligence.  The irony is that it is unclear what difference the use of technology could have made in this instance – it would have shown the employees acting in the precise manner that the Court found to be legally acceptable.