National Union of Metalworkers of South Africa (NUMSA) obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems SA (Pty) Ltd

On 14 July 2017, 148 employees who were NUMSA members engaged in an unprotected strike at Marley Pipe Systems SA (Pty) Ltd's premises. The employees were dissatisfied with wage negotiations and demanded the removal of Mr Ferdi Steffens, the head of human resources. During the strike, employees left their workstations, assembled in the canteen, and marched towards Steffens' office carrying placards. When Steffens approached them to seek their return to work, he was surrounded and seriously assaulted by members of the group. He was pushed through a glass window, had rocks thrown at him, and was repeatedly punched and kicked. He sustained serious injuries requiring medical treatment. Following the assault, the employees celebrated and chanted. The respondent obtained an interdict from the Labour Court and initiated disciplinary action. After a hearing chaired by an independent chairperson, all 148 employees were dismissed for participating in the unprotected strike and acting with common purpose in the assault. Twelve employees were directly identified as participating in the assault, 95 were identified through photographic and video evidence as being on the scene, and the remaining 41 were identified through clocking records and absence from workstations. NUMSA pursued an appeal on behalf of only 41 of the dismissed employees.

• Whether the dismissal of the 41 employees for whom the appeal was pursued was substantively fair
• Whether the doctrine of common purpose was correctly applied to establish the liability of employees not directly identified as participating in the assault
• Whether the employees who were not placed at the scene through direct evidence could be found to have acted with common purpose in the assault
• What inferences can properly be drawn from circumstantial evidence in cases of collective misconduct
• Whether the sanction of dismissal was appropriate in the circumstances
• Whether the requirements for establishing common purpose in the workplace differ from the criminal law requirements

The appeal was dismissed. The Labour Court's finding that the dismissal of all 41 employees was substantively fair was upheld. No order as to costs was made.

In cases of collective workplace misconduct, employees can be found to have acted with common purpose and held liable for the misconduct even if not directly identified as perpetrators, where: (1) they associated themselves with the actions of the group before, during, or after the misconduct; (2) they had prior or subsequent knowledge of the misconduct; and (3) they possessed the requisite intention, either intending the misconduct or foreseeing its possibility and recklessly associating themselves with it. Physical presence at the scene of the misconduct is not strictly required in the workplace context, distinguishing it from criminal law applications of common purpose. Where an inference must be drawn from circumstantial evidence regarding participation in collective misconduct, the court must select the inference that is most plausible or natural from those that present themselves, and where employees fail to provide evidence of alternative inferences or to distance themselves from the misconduct despite opportunities to do so, the inference of participation or association becomes the most probable. The failure of employees to distance themselves from collective misconduct, either at the time or subsequently, can be weighed against them in determining liability.

The Court noted that the appellants conceded at the outset of the appeal that dismissal was an appropriate sanction for the 107 employees in respect of whom the appeal was not pursued, which supported the conclusion that dismissal was also appropriate for the remaining 41 employees given that their conduct was materially similar. The Court observed that the requirements for proving common purpose in the workplace context, as set out in Dunlop, move outside the strict requirements established in criminal law cases like Mgedezi, reflecting the different context and policy considerations in employment relationships. The Court noted that in Dewnath v S, it was emphasized that the most critical requirement of active association is to curb liability that is too wide, requiring close proximity between the conduct and the result, and that such association must be significant and not merely limited participation removed from the actual execution. The Court observed that no reason in law or fairness existed for making an order of costs, and the respondent did not seek such an order.

This judgment is significant in South African labour law for clarifying the application of the common purpose doctrine in cases of collective workplace misconduct. It confirms that the workplace standard for common purpose differs from strict criminal law requirements set out in cases like Mgedezi. The judgment establishes that employees can be held liable for collective misconduct through association before, during, or after the misconduct, even without direct presence at the scene, provided they had the requisite knowledge and intention. It reinforces principles regarding the drawing of inferences from circumstantial evidence in collective misconduct cases, particularly the significance of employees' failure to distance themselves from misconduct or provide alternative explanations. The judgment provides important guidance on how employers can identify and hold accountable participants in collective misconduct through various forms of evidence including video footage, clocking records, and employees' subsequent conduct. It demonstrates the serious consequences that can flow from participation in unprotected strikes accompanied by violence, even for those not directly involved in violent acts.