Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
An assault at the workplace by one employee on another is normally seen as very serious misconduct. Despite this, employers are often wrong in dismissing employees accused of assault even if the assault is a serious one. The reason for this is that the employer too often reacts emotively to alleged assault due to the grievous nature of the offence. This diverts the employer’s attention from the cold, hard facts when assessing whether dismissal is appropriate in the circumstances.
If you believe your employee has failed to keep to your rules you must carry out an in depth misconduct investigation in order to gather solid proof that the employee is in fact guilty and deserves to be dismissed.
Should the employee dispute a dismissal via the CCMA you would have the onus of proving that the dismissal was fair. If you fail to convince the arbitrator of this you could be forced to reinstate your employee and/or pay him/her a year’s salary or more.
In the case of Vereeniging Refractories vs NETU obo Botes (1998 3 BALR 377 a supervisor was dismissed for pushing a labourer who, he alleged, had verbally abused him and threatened him with a knife while being reprimanded.
The arbitrator found that it was uncertain exactly what had happened but that it was the employer’s duty to prove that the employee 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.
Employers should take note of the following principles emanating from the above case:
- Assault does not automatically merit dismissal of the accused
- Self defence is accepted as a mitigating factor and could therefore mean that dismissal is uncalled for
- At arbitration the employer is highly unlikely to succeed with proving its case if it fails to identify, prepare and bring witnesses to convince the arbitrator that its allegations of misconduct are valid and that the dismissal was fair
- Dismissal of an employee must be preceded by a thorough investigation, collection of solid proof and the presentation of such proof in a watertight manner
- If you, the employer, are not a labour law expert you should acquire intensive training or hire someone expert in the law to handle the disciplinary process.
To attend our Labour Law Update 2015 seminar in Johannesburg on 5 June 2015 please contact ronni@labourlawadvice.co.za or phone Ronni on 0845217492.
