The Constitutional Court (CC) in South Africa recently clarified the application of the doctrine of common purpose in the employment law context. The CC answered the question as to whether an employer may apply the doctrine of common purpose to dismiss employees for misconduct where the employees were spectators to a violent assault during an unprotected strike. This decision has implications for employers who intend to dismiss employees for these reasons. This article was written by Francis Mayebe, Candidate Attorney in the Johannesburg office of Baker McKenzie, and overseen by Tracy van der Colff.
The doctrine of common purpose is a well-known principle in criminal law. In essence, if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, then the conduct of each of them in the execution of that purpose is imputed to the others. From a labour law context, the doctrine is relevant in instances of violent strike action. The vexed question is whether an employer may apply the doctrine of common purpose to dismiss employees for misconduct where the employees were spectators to a violent assault during an unprotected strike. The CC provided some guidance in this respect in August 2022, in NUMSA obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd  ZACC 30.
Brief facts and prior litigation
One hundred and forty-eight employees participated in an unprotected strike, during which a rogue group of twelve employees violently assaulted the employer’s head of HR. The employer instituted disciplinary proceedings and eventually dismissed all 148 employees who had participated in the strike and had been present during the assault. The chairperson found all the employees guilty of two counts of misconduct – both the assault and participating in an unprotected strike. Forty-one of the employees challenged this decision and both the Labour Court (LC) and Labour Appeal Court (LAC) found in favour of the employer. The LAC held that to avoid liability under the doctrine of common purpose, the employees in the vicinity of the assault had an obligation to take positive steps to disassociate themselves from the conduct of the perpetrators and intervene to stop the violence from taking place.
Constitutional Court Finding
In its finding, the CC unanimously overturned the decision of the LAC. The CC found that 12 of the 148 employees were actively engaged in the assault, and 41 of the employees were unidentified. Despite the probability of the unidentified employees being at the premises during the violent action, the CC found that the LAC misconstrued the doctrine of common purpose by requiring bystanders to take positive steps in disassociating themselves from the actual perpetrators, and intervening in stopping the violent action. Common purpose requires active association with the violence before its commencement. The mere presence at the scene of the violent action does not invoke the doctrine of common purpose and impute that conduct to all bystanders.
In this instance, there was no clear evidence that the employees intended to associate themselves with violent actions. The mere fact that the employees were singing during the violent action was not enough to establish an active association with the violent action and thus establish a common purpose.
Active disassociation by intervention in the context of a violent strike may put an employee in harm’s way. Therefore, an employee is entitled to choose silence for fear of retaliation and animosity.
The CC set aside both the LC and LAC findings and referred the matter back to the LC to consider an appropriate sanction on the charge of participation in an unprotected strike only.
The CC clarified the application of the doctrine of common purpose, and its application in the context of employment law. It is undeniable that singing and jeering while your colleague is being violently assaulted is abhorrent, but in this case it was not enough to invoke the doctrine.
Common purpose requires positive steps in associating oneself with violent action. Our law does not require that an employee actively disassociates themselves from the violent action or intervenes. Therefore, a careful analysis is required on the basis of the facts and evidence to determine whether the employee is guilty of misconduct by way of common purpose.