Schedule 8 of the Labour Relations Act (LRA) states that included amongst offences that might merit dismissal for a first offence are wilful endangering of the safety of others and physical assault.
Assault at the workplace is normally seen as serious misconduct because of:
- the harm or potential harm to the victim of the assault
- the potential disruption of workplace harmony
- the potential for the employer to be sued for vicarious liability by the assault victim, and
- the loss of business if the victim of the assault is a client.
Despite this, employers often bungle disciplinary action against alleged assault culprits because of the anger attached to incidents of assault. 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.
Should the employee dispute a dismissal via the CCMA or a bargaining council, the employer will have the legal duty to prove that the dismissed employee was guilty of the assault and that, under the specific circumstances, dismissal was the most appropriate corrective measure. If the employer fails to convince the arbitrator of this it could be the employer’s bank balance that is assaulted. That is, the arbitrator could award reinstatement with back pay or could order the employer to pay up to 12 months’ remuneration in compensation.
Assault does not always merit dismissal. For example, in the case of Metrorail vs SATAWU (2000 10 BALR1208) an employee assaulted a manager. The arbitrator found that the victim of the assault had made racist remarks which had provoked the assault. This mitigating circumstance rendered the penalty of dismissal too harsh and the employee was reinstated.
In the case of Herman vs Defy Appliances Ltd, Herman was dismissed for assaulting an assistant. He claimed that he had merely grabbed the assistant but the CCMA found that he had, in fact, hit the assistant with his fists. The CCMA found that such action merited discipline even if workplace rules did not specifically prohibit it and even if other employees had not been dismissed for assault. Despite these findings and the serious nature of the assault, the CCMA found that dismissal was not an appropriate punishment and reinstated the employee.
The above cases show that, even in serious cases of assault, the CCMA will not always approve of dismissal as a sanction. Therefore, employers should understand that:
- the individual circumstances of each case are crucial in deciding whether dismissal for assault is acceptable
- the ability to anticipate the thinking of CCMA and other arbitrators is vital, and
- substantial labour law experience and expertise should be obtained before discipline is implemented.