One of the most serious offences committed in the workplace is physical assault. Although there might be certain justifiable defences for this type of misconduct, for example, provocation or self-defence, the Labour Court has adopted a very strict approach towards any form of assault in the workplace.
In the unreported matter of Bombela Operating Company (Pty) Ltd v Mthukwane and Others  ZALCJHB 22 (30 January 2018) where the Court stated that:
“…For an assault to have taken place, it need not have been accompanied with an ‘upper cut’, or a slap. An assault by definition can take a variety of forms, and the legal requirements are the intentional and unlawful application of physical, however slight, to the body of the complainant, or the threat that such force will be applied….”
Navigating the Loopholes of Off-Premise Disputes
From the above, it becomes clear that even the slightest application of force may be seen as physical assault and almost always deemed as a dismissible offence. However, the question employers are often confronted with is whether the same principle applies when the assault does not take place on company premises and/or during working hours.
Does the company still have the duty to discipline the employee accordingly? Or does the assault then fall outside the scope of labour law and be dealt with either criminally or civilly?
In the matter of Horn V Commissioner Beesnaar N.O and Others (JA66/2020)  ZALAC 56; (2022) 43 ILJ 115 (LAC) (18 November 2021) the employee was dismissed from his place of employment for the assault of a fellow employee on a public road outside the mine.
The Commissioner found that the dismissal of the employee amounted to “a sensible operational response to risk management” and was found to be both procedurally and substantively fair.
The employee referred the matter to the Labour Court appealing the Commissioner’s ruling based because, inter alia, the incident did not take place on company premises or during working hours.
The Labour Court’s Verdict
The Labour Court, and later on the Labour Appeal Court, both rejected the employee’s grounds for appeal and upheld the ruling of the Commissioner by stating that the dismissal was both substantively and procedurally fair despite the assault not having taken place on company premises or during working hours.
From the above, it becomes clear that employees cannot make themselves guilty of offences related to the assault on a colleague and argue that the employer is not within its rights to take the appropriate action and possibly dismiss the employee when such assault took place outside the employer’s premises and or working hours.
Creating Clear Company Policies
Employers are urged to ensure that they have clear policies and procedures in place to properly regulate such grey areas if such an incident might take place. Workplace frustration and unhappiness can easily rocket into conflict, and it is imperative to have the necessary rules and regulations in place to safeguard both the employer and its employees.
Should you require any assistance with updating your company policies and rules and or advice on disciplinary action, contact Invictus Group on 0861 737 263 for us to assist you.