On 22 August 2022 the Constitutional Court delivered its judgment in the appeal of that matter in NUMSA obo Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30.

Briefly, following wage negotiations, a number of employees embarked on an unprotected strike. They marched to the office of Mr Ferdinand Steffens, the Company’s Human Resources Manager. When he exited his office he was severely assaulted and ultimately pushed through a window by the striking employees. By way of video evidence, the Company identified 12 employees directly participating in the assault. The remainder of the employees were identified on the basis that their clocking cards indicated that they were at the premises at the time that the assault took place. It was assumed that they were present when the assault took place and thus were charged for directly or indirectly participating in the assault. The respondent dismissed 148 employees, 12 for directly participating in the assault and 136 on the basis of the application of the principle of common purpose. However, there was no evidence which placed 41 of the dismissed employees in the vicinity of the assault.

The Labour Court found that the dismissals of all 148 employees to be fair. So did the Labour Appeal Court, relying on the application of the principle of common purpose. The appeal only concerned the 41 individuals who could not be placed at the scene of the assault.

The Constitutional Court found that the Labour Court and Labour Appeal Court had misapplied the principle of common purpose when those Courts insisted that the principle requires bystanders to dissociate themselves from the misconduct. The Court found that even making dishonest statements during evidence, not directly related to the conduct complained about, did not render the 41 unidentified employees accessories after the fact.

The Court endorsed its earlier judgment in National Union of Metalworkers of South Africa obo Khanyile Nganezi v Dunlop Mixing and Technical Services (Pty) Limited 2019 (5) SA 354 (CC) by stating that employees must share a common purpose with the perpetrators of the assault by performing some act of association with the conduct of those individuals to be found guilty of misconduct on this basis. By failing to give an explanation for their misconduct, the 41 employees could not be considered to be complicit. An employer is obliged to establish complicity on the part of each employee it seeks to charge with misconduct on the basis of common purpose. In summary, the Court found that the Company had not satisfied the principle of common purpose and the Court upheld the appeal.

This case is at variance with the Constitutional Court’s judgment in Commercial Stevedoring Agricultural and Allied Workers Union v Oak Valley Estates (Pty) Ltd (2022) 43 ILJ 1241 (CC) where the Court held that:

“[42] … Where, for instance, unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct, to escape the inference that it is reasonably apprehended that they will cause injury to the  applicant”

The Court explained this difference as in Oak Valley the Court was concerned with interdicts whereas, in the present instance, it was concerned with dismissals for misconduct. The distinction which the Court seeks to draw between the Marley Pipes matter and Oak Valley appears to be artificial, and unfortunately raises more questions than it gives answers.

The judgment is disappointing in relation to comments, which appear to be obiter, regarding measures that employers should put in place to assist with the identification of wrongdoers, such as camera systems. Such suggestions are unhelpful and miss the boat, unfortunately.

Of critical importance, though, is the Court’s suggestion that if the Company in this matter had charged the employees with being ‘accessories after the fact’, or put forward a case that they were accessories after the fact, the sanction of dismissal may have been fair. Hindsight is, of course, 20/20 but it is too late. Nevertheless, specialist legal advice should be taken when dealing with strikes and, in particular, strike misconduct as this area is fraught with complexity.