Article written by Jan Zandberg (SEESA)
Employees often cry “provocation” when facing charges of assault or fighting in the workplace during a disciplinary hearing, but can provocation be seen as a defence?
Assault or fighting in the workplace is generally regarded as a serious and a first-time dismissible offence.
Provocation can be described as an act whereby an employee acts out of anger or in retaliation to being insulted or teased by another employee. It can be seen as a temporary “loss of control” by the employee due to being insulted or teased.
It’s important to note that there is a difference between Self-defence and Provocation:
X assaults A. In an attempt to defend himself, A pushes X away from him and injures X in the process.
Self-defence is an actual defence that an employee can raise to excuse their misconduct completely. If person A successfully raises and proves that he was acting in Self-defence, he could be found not guilty on the charge.
X insults A to such an extent that A loses his temper and punches X in the heat of the moment.
Provocation is merely a mitigating factor that does not excuse the misconduct by the employee. If person A successfully proves provocation, it will be taken into account during mitigating circumstances, and his sanction may be reduced to a more lenient sanction, such as a Final Written Warning and not a Dismissal.
Employers sometimes have to deal with provocation during a disciplinary hearing or when investigating an incident in the workplace and the question is asked – “How should I deal with a defence of provocation?”
The Labour Court recently dealt with provocation in Nampak Products (Pty) Ltd t/a Megapak v CCMA and Others (C512/2018)  ZALCCT.
The mere fact that an employee raises provocation as a defence during a disciplinary hearing does not automatically spare the employee from a dismissal. The employer has a duty to investigate the extent of the provocation.
When testing a defence of provocation, one should apply the “Reasonable Man Test”, meaning that the employer should ask these two main questions:
1. Did the employee react reasonably in the context of the provocation?
This basically means that the employee cannot overreact under the circumstances. The employee’s reaction must be justified. A reasonable person in the shoes of the employee would have reacted similarly.
The nature and extent of the provocative act have to be taken into account, i.e., what was said, what was done, and what were the other surrounding circumstances affecting the situation?
- X shouts at A, and points his finger at him, accuses him of theft and slaps him in the face. A reacts and slaps X. In this scenario, A could be regarded as being provoked as his reaction was reasonable under the circumstances.
- Contrary to the above, person A carries a heavy box and accidentally bumps X. X insults A by telling him that he is “always in the way” and A hits X with a fist. The reaction from A is unreasonable under the circumstances.
2. Whether the employee reacted immediately to the provocation?
The employee should have reacted immediately, and there should not have been a delay in the reaction. The phrase “heat of the moment” is key. When the response is delayed, the employee has time to reconsider his actions.
- Scenario 1:
X shouts at A, points his finger at him, accuses him of theft and slaps him in the face. As this was happening, A punches X. The reaction from A was in the heat of the moment and can be justified as being provoked.
- Scenario 2:
X shouts at A, points his finger and slaps him. X walks away, goes to his office and closes the door. A then decides 2 minutes later to follow X, force open the office door and then assaults X. The reaction from A was delayed and not in the heat of the moment. He had time to reconsider his actions and will not be successful when raising provocation during a hearing.
Provocation is not an automatic defence, and an employee is not automatically indemnified from dismissal. The circumstances and extent of the provocation have to be investigated to determine whether and to which extent the provocation should be taken into account as a mitigating factor.
About the Author
Jan Zandberg is a Labour & BEE Legal Advisor at SEESA’s East London branch. He obtained B.Com LLB degree from the NWU in 2014 and was an admitted Attorney of the High Court in 2017.
- Nampak Products (Pty) Ltd t/a Megapak v CCMA and Others (C512/2018)  ZALCCT (par 35 – 40)
- Labour Relations Act No 66 of 1995