The principles related to the doctrine of common purpose revisited by the Constitutional Court (CC)
When an act of misconduct is perpetrated within group context, it is not always possible for the employer to pinpoint complicity in the misconduct in respect of each and every member of the group concerned.
The “safety in numbers” argument potentially gives a hiding place for participants in and perpetrators of misconduct within group context.
The doctrine of common purpose, however, provides a legitimate way for the employer to deprive complicit employees of the anonymity which sheltering within the group offers to them.
Resorting to the common purpose doctrine to expose perpetrators of misconduct is however not a simple and easy solution for employers and requires some degree of caution and circumspect, which was ably pointed out in the recent Constitutional Court case: NUMSA obo Aubrey Dhludhlu & 147 others v Marley Pipe Systems (SA) (Pty) Ltd (CC) 22 August 2022.
Brief background context:
During an unprotected strike, associated with a wage dispute on 14 July 2017, a substantial number of employees (148) were dismissed partly due to participating in the unprotected strike and partly due to being found guilty of the assault on a member of management. The latter offence the employees were found guilty of was premised on the doctrine of common purpose.
The following events led to the eventual dismissal of these employees:
Dissatisfied with the wage increase agreed at sectoral level, a group of employees, scheduled to work the morning shift, gathered at the canteen, and demanded to speak to the company’s head of HR. When the latter did not show up at the canteen, the group of employees proceeded to the administration offices where the head of HR came out to address them, however he was assaulted by 12 identifiable members of the group, while the rest of the group looked on.
The case which eventually found its way to the CC was an appeal regarding the finding of the Labour Appeal Court (LAC) endorsing the dismissals on the basis of common purpose. The conviction of employees for participating in the unprotected strike, was not placed before, and thus not adjudicated by the CC.
The CC found that the LAC’s interpretation of the application of the common purpose doctrine was incorrect and that the LAC in fact created new principles regarding the common purpose doctrine which was unsustainable within context of the already established jurisprudence in this regard.
The dismissals, justified on the basis of the common purpose doctrine by both the Labour Court (LC) and subsequently the LAC, was found to have been substantively unfair.
Current jurisprudence regarding the doctrine of common purpose
The CC, in its deliberation on the correct application of the doctrine of common purpose, referred to several pieces of relevant case law which established the jurisprudence in so far as the common purpose doctrine is concerned. I do not intend to mention here all the citations of these pieces of case law, but will direct your attention to: S v Mgedezi and Others (SCA) (see passage at 67 [Link to passage 67] and cross reference with the passage at 17 in the NUMSA-case) [Link to passage 17] and Commercial Stevedoring Agricultural and Allied Workers Union v Oak Valley Estates (Pty) Ltd (CC) (see the passage at 45 [Link to passage 45) and cross reference with the passage at 23 in the NUMSA-case) [Link to passage 23].
The two cases cited above established, respectively, the criteria upon which the application of common purpose doctrine must be evaluated and employers’ ability to utilise modern means by which perpetrators of misconduct within group context can positively be identified.
The criteria on which the LAC based its application of the common purpose doctrine
The LAC’s justification of its application of the common purpose doctrine in the case in question (and which arguments and conclusions the CC took issue with) were based on the following facts:
- The employees who were dismissed all gathered at the canteen on the morning of the event in question.
- When the official they wanted to speak to did not meet them at the canteen, all these employees moved, as a group, to the employer’s offices, dancing and singing.
- At the offices the official in question came out and was physically assaulted by 12 identifiable members of the group of employees, while the rest looked on, still dancing, and singing, which the LAC interpreted as “joint rejoicing” in or “celebrating” the assault in unison.
- None of the employees present at the event intervened to stop the assault or visibly distanced themselves from the assault.
- While the employees in question were given an opportunity to explain why they cannot be assumed to have taken part in the assault, the majority did not take heed of this opportunity.
Held by the CC regarding the correct application of the doctrine of common purpose
Dismissing the LAC’s reasoning justifying guilt by association (or common purpose), the CC reiterated the following principles related to the application of the common purpose doctrine:
- While being physically present at the scene is generally a required, it is not necessarily a prerequisite for complicity. Association with the event before or even after the event could establish complicity.
- Being aware of the misconduct being perpetrated is a requirement.
- There must be an intention to make common cause with the perpetrators of the misconduct, thus performing some act of association.
- For liability to attach, there must be proof (at least on a balance of probability) of the individual employee’s complicity.
- The mere failure on an employee’s part to give an explanation substantiating his/her non-complicity or mere failure to distance or dis-associate him/her from the event, or failure to intervene, does not equal complicity in the event.
- Individual complicity must be established, being a well-entrenched principle of the doctrine of common purpose. Conviction without such proof renders the law a cruel instrument potentially attaching guilt and imposing sanction to the innocent.
- Complicity within context of common purpose must include the necessary intent to associate.
- A “bystander” or “spectator” of misconduct being perpetrated is simply a person present at the event – complicity in the event requires much more than presence.