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 of The Labour Consultancy and Grant Ray-Howett of Kanichowsky, Solomon & Charalambous. This week, Labour Guides looks at assaults by employees on fellow employees that take place after hours or off company premises and when an employer would be able to dismiss in such circumstances. WHEN EMPLOYEES FIGHTAccording to the new Labour Relations Act ( LRA), the general rule is that a first instance of misconduct is not dismissable. However an important proviso to this, is that if the instance of misconduct is sufficiently serious, a dismissal for the first offense may be warranted.Pre-LRA case law as well as recent arbitration awards tell us that assault on a fellow employee as well as on a customer is a dismissable offense. An interesting feature of some case law that has emerged is that in some cases, an employee has been dismissed for fighting off premises and or after working hours. In this article, we shall examine when one would be justified in dismissing an employee for assault on a fellow employee off premises or after hours.
The dilemma However, when an employee is not on company time or not on company premises, how does one justify an employers right to discipline an employee for how they choose to behave. By allowing an employer to dismiss an employee for assaulting a fellow employee after hours or off company premises, are we not allowing an employer to assume the position of big brother and allow them to intrude to far into the employees right to privacy. On the other hand, preventing the employer from dismissing an employee for assaulting a fellow employee off premises or outside company time can, in some circumstances, present problems for the employer. A fight between two employees, notwithstanding the fact, that it took place off company premises or outside company time can have an adverse effect on the employers business. For one, the fight may have taken place between two employees who work closely together and due to the fight they can no longer work together effectively or an existing or potential customer may have witnessed the fight and may have decided to take their business somewhere else as a result of witnessing such “deplorable behavior”.
The Approach taken by the Courts This may happen if a criminal act (such as assault) -'impinges in some way on the employment either by affecting the reputation of the business, or the employee during the course of his work, or where the employee has a position of special trust'.( National Union of Mineworkers & others v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ 739 (IC) at 743E-F). The above principle has also been applied by arbitrators under the new LRA. Basically, the principle says that an assault after hours or off premises will give rise to a dismissal if as a result of the assault there is a significant impact on the particular workplace. However it is also clear from the case law that the onus of proof lies on the employer to show that the assault was sufficiently related to the workplace. Here are some examples of situations in which the courts have found that an after hours assault could give rise to a dismissal or at least some form of disciplinary action: However, it must be borne in mind that the fact that an assault is deemed to be “sufficiently” work -related, is not the only factor that is taken into account. The courts also look at the particular circumstances pertaining to the individual(s) involved. For instance, the fact that the guilty party had a previously clean disciplinary record and that he was provoked, are factors which would mitigate against dismissal. |
