Assault / Fighting at work
When I started work for a major soap manufacturer in 1969, I was given the task of attending all the disciplinary enquiries at their Maydon Wharf site. Even in those days, the company had a very enlightened approach towards its employees. Nobody was ever fired ‘out of hand’ but there were two offences which were ‘automatic’ dismissal offences. One was theft and the other was assault or fighting.
The rule was very clear that if two persons exchanged blows, both were dismissed. Over the years, there were a number of fights and in each case, both parties were dismissed, regardless of the circumstances or the length of service of the employees involved. This always struck me as a lose-lose outcome if there ever was one!
In the early days of the Industrial Court, AECI took a similar approach when it dismissed Wahl, an operator, for fighting with another employee. The MWU took up Wahl’s case on the grounds that he had been provoked by the conduct of the other employee. Eventually, while complimenting the company for the fair way that the disciplinary enquiry had been handled, the Industrial Court reinstated Wahl without back pay.
In effect this meant that Wahl had been suspended without pay for two months, which the Court found was punishment enough, given his service and the circumstances. This outcome in fact paved the way for suspension without pay as an alternative to dismissal. It also caused employers to rethink the rule ‘if blows are exchanged both employees must go’.
However, in 2006 a similar case was referred to the Labour Court for adjudication – Anglo Operations Ltd (Bank Colliery) v Tokiso Dispute Resolution (Pty) Ltd & others (2006) 15 LC 1.11.17. In this case, an employee was dismissed for assaulting another employee who had insulted him in front of other employees. The dismissal was referred to private arbitration where the arbitrator held that the dismissal was procedurally and substantively unfair. The employer sought to have the arbitration award set aside, arguing that the dismissal was consistent with another assault case, contending that lesser sanctions are given only when the assault is not physical.
On reviewing the case, the Court held that the arbitrator’s finding of provocation could not be faulted even though the employee had probably overreacted to the provocation. In deciding on the appropriateness of the sanction, the arbitrator had taken into account the employee’s clean service record over a period of twenty years. In terms of the Individual Dismissal Dispute and Adjudication Procedure entered into between the employer and representative union, the award could only be set aside if the arbitrator acted unreasonably or committed an irregularity.
The Court was unable to find grounds for interfering with the decision. To have only one sanction, and the harshest one possible, for an offence such as assault, which can vary greatly in nature, was unrealistic. The application to review the award was dismissed with costs.
These cases have the potential to be disruptive and costly and attract a lot of negative publicity. Therefore an employer should be pragmatic and flexible rather than rigid and pedantic in its approach to handling cases of assault and/or fighting.
In dealing with these cases, one must establish:-
Who initiated the conflict? The aggressor must take the ‘lion’s share of the blame’ for the incident, especially if blows are exchanged. Here one needs to look at the degree of provocation and whether there was any premeditation. One also needs to look at the relative sizes of the employees involved. In one unreported case last year an employee was stabbed by another employee with a work knife after he repeatedly accused another employee of blocking a toilet. This employee was considerably bigger than the other employee and had in fact struck the first blow. He argued at the CCMA that it was unfair for the employer to dismiss him as he had already been punished by being stabbed. The dismissal was upheld.
How much time elapsed between the provocation and the assault or fight? It is one thing to act in the heat of the moment and quite another to deliberately attack another person. For example in an engine assembly plant, an employee had punched another employee in the change room during the tea break. Instead of reporting the matter, that employee went home and returned with a knife with which he stabbed the other employee. Both employees were dismissed and the dismissals were uncontested by their union.
Was retaliation a reasonable response? Apart from provocation, one must also examine whether there was an element of self-defence involved. In one case, a quality inspector kicked a welder in the head, knocking him out cold. This was after the latter approached had approached the inspector in a threatening manner with a hammer in his hand. The inspector was found to be justified in his action as the welder was the aggressor, was much larger than him and had a reputation for fighting outside of the workplace.
Where did the assault or fighting take place? There is absolutely no question that fighting around moving machinery is highly dangerous and will warrant dismissal but what about an assault that takes place outside of the plant. For example what if an employee tried to assault his supervisor on the train on the way home? Here the important consideration is the reason for the assault. If it is work related, then the employee may be dismissed, but if it was over a private matter, the employer would lack jurisdiction to discipline the employee.
Has the working relationship broken down as a result of the incident? Where there has been a breakdown in the employment relationship, this is the key issue in determining dismissal. Sometimes employees exchange blows in the heat of the moment but later become remorseful, ‘shake hands and apologise’. Dismissing in these circumstances will send out a message to other employees that violence in the workplace will not be tolerated but that is a very high price to pay for two good employees!
On the other hand where a supervisor, manager or a witness is threatened or assaulted, management must be seen to be firm and supportive. Violence and intimidation cannot be allowed to rule the workplace!