Another worker was also dismissed based on common purpose, even though his clock card showed that he had only arrived at work after the assault occurred.
On Monday, the Constitutional Court delivered an important judgment regarding when an employer can dismiss workers who associate with violence committed by others based on the “common purpose” rule.
The recent Constitutional Court decision clarifies when common purpose can be used in the labour law context. According to the unanimous judgment written by Justice Mbuyiseli Madlanga, common purpose will only apply when other people unlawfully associate with the crime.In 2017, workers belonging to the National Union of Metalworkers of SA went on an unprotected strike over a wage agreement concluded in the Plastics Negotiating Forum.
A total of 95 workers could be placed on the scene of the assault through video footage and photographs. A further 40 workers could not be placed at the scene. But the company said their clock-in cards showed they were not at their workstations when the assault occurred. They were also found guilty of the assault based on common purpose and dismissed.Numsa then referred an unfair dismissal case to the Labour Court on behalf of the 148 workers. The Labour Court dismissed the case.
The Constitutional Court said that common purpose is often used when employers cannot directly show that individual employees committed misconduct. But, the main problem with applying common purpose too easily is that innocent employees, who were not involved or did not support the misconduct, could be found guilty and dismissed, the court said.
The Labour Appeal Court was incorrect to develop a new rule for common purpose, the judge said. The workers did not have a legal duty to intervene in order to avoid being held liable for the assault under common purpose.
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