Incidents of physical assault in the workplace can and do occur.
For the purposes of this article, assault is defined as the unlawful and intentional application of force or threat of force to a person which causes bodily harm or causes that person to believe that such harm is imminent.
Assault is serious misconduct which can result in dismissal for the first offence if proved. The employment relationship is such that employees are expected to conduct themselves in an orderly manner at all times.
Failure to do so constitutes a major breach of the contract of employment and makes one liable to disciplinary action in terms of the organisation’s disciplinary code or national employment code.
In the absence of both, the national employment code (Statutory Instrument No 15 of 2006) can be used. Inasmuch as assault is an internal disciplinary matter, it is also a criminal act and the victim can report the perpetrator to the police for prosecution.
It is important to note that not all cases of assault can be dealt with by organisation.
An organisation only has jurisdiction over instances of assault which occur on its property or in close proximity to its premises or where the assault concerned a work-related issue.
In a South African case of NUM and Others versus East Rand Gold and Uranium Company Limited (1986), the court decided that assault which occurs in a company bus while employees are being transported to and from work falls within the company’s jurisdiction.
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Employers, however, ought to proceed with caution when dealing with misconduct outside working hours or places of work as it is often more complex than dealing with misconduct in the workplace.
Where an employee has to be disciplined for misconduct outside of work, there should be some direct connection between the misdemeanour and the employment relationship. Whether such a connection exists will have to be decided on a case-by-case basis.
For instance, if an employer can be held vicariously liable for a sexual harassment incident that takes place at a work-related social event such as the office Christmas party, what should stop such employer from disciplining an employee who assaults another at such function?
If an assault takes place in a mining village, the employer obviously has a direct interest in the wellbeing of the residents of that village.
Assaulting a fellow employee or non-employee in the village would therefore infringe the mine’s rules.
However, can this be equated to a situation where an employee assaults another patron at a night club on a Saturday night?
What if the employee was wearing his workplace uniform at the time of the assault or if the assault victim was in some way associated with the employer’s business?
For every case taken on appeal to the courts, each case will potentially have a different outcome because circumstances differ, as do the views of different judges and arbitrators.
A typical example is that of Tanganda Tea Company versus Mvududu (Supreme Court Judgment SC 1/2007).
In this case, Mvududu, a garage foreman, assaulted a visiting Mozambican national who had come to a cocktail bar on Tanganda’s premises to entertain himself.
He was dismissed. Aggrieved by the company’s decision, Mvududu appealed to the Labour Court.
The Labour Court ruled that since the fighting or violence directed at the visitor was not work-related, no disciplinary offence had been committed.
Accordingly, Mvududu was to be reinstated without loss of salary or benefits. Tanganda appealed against this judgment to the Supreme Court which set aside the judgment of the Labour Court on the basis that the president (judge) concerned had erred by restrictively interpreting the provisions of Tanganda’s code of conduct.
A number of mitigating and aggravating factors should be considered when dealing with assault cases. Firstly the nature of the assault must be established. Was the assault provoked or not?
Provocation is a mitigating factor, but the person who relies on it must be able to prove it.
Secondly, it must be established whether the assault or fight took place between two or more parties on the same level in the company hierarchy or between a superior and a subordinate.
Assaulting a superior is aggravating as it disrespectful, inappropriate and damaging to the employment relationship.
The assaulting of a superior by a subordinate can be harmful to the future maintenance of discipline by that superior.
However, if the superior provoked the assault because of the heavy-handed manner in which he tried to enforce his authority, this may be mitigatory.
Thirdly, it is important to consider whether serious injury arose and if not, whether there was potential for serious injury.
Assault that leaves the victim with more severe injuries should carry much stiffer penalties than simple assault which may only leave bruises.
Fourthly, the consequences of the current incident on future industrial relations must be taken into account. If the circumstances of the case are such that workplace discipline may be impaired if the assailant were to remain in the workforce, dismissal is often necessary.
Fifthly, the organisation’s policy on workplace violence is important. The way in which previous cases were handled would indicate to employees what to expect if they assaulted someone.
If the company has condoned certain instances of assault in the past, it must review its new policy if it wishes to act more strictly in future. The employees should then be notified of this shift in the company approach.
Sixthly, if the assailant has no previous record of violent behaviour, this could count in his favour.
Seventhly, an important consideration is the assailant’s attitude at the disciplinary hearing.
If the assailant is remorseful or indicates that he knows that he acted wrongly, this may diminish his guilt.
His attitude could determine whether he could safely work together with the assaulted employee in future.
If the assailant shows a remorseless attitude, he should be dismissed, since the company has a duty to protect other employees.
Eighthly, years of service are also important, as they are in most disciplinary cases.
Lastly, but not least, premeditated assault should be viewed more seriously than assault which occurs in the heat of the moment.
Assault is a form of workplace violence which can increase stress levels, reduce sense of personal safety and decrease staff morale.
For victims and witnesses of workplace assault, the impact can be physical, mental, emotional, economic, and even catastrophic. Besides disciplining the perpetrators, what else can organisations do?
A transfer of one or both parties involved can be considered, so as to assuage animosity between the two parties.
When recruiting, organisations should investigate a job applicant’s work experience, character, criminal history and other relevant data in order to screen out applicants with aggressive tendencies.
Managers and supervisors should also be trained to be able to identify the early warning signs of potential violence within their subordinates and how to address them.
