Workplace Provocation Defence is one of the key justifications raised in cases involving assault or fighting on duty in the workplace. In the context of South African employment law, provocation as a defence can significantly influence the outcome of disciplinary inquiries. Understanding how this defence is assessed and applied under local labour law is essential for both employers and employees to ensure workplace conflicts are handled fairly and in compliance with legal standards.

What is provocation?

Provocation is described as a wrongful act or conduct from one person towards another which deprives the other person/s of their power to react or have self-control. In the context of a workplace, it can be described as the retaliation of an employee against some provoking conduct or statement made by another employee. It can further be stated that provocation is accepted as a defence in the South African legal system. However, the question arises of what happens when an employee raises provocation as a defence in a disciplinary inquiry?

When an employer is faced with the workplace provocation fefence during a disciplinary inquiry, they are required to consider all relevant factors surrounding the misconduct, including the criteria for provocation as a defence and the application of the reasonable man test.

The reasonable man test:

When considering provocation, the employer should apply the principle of “the reasonable man test”, being the same test that is used in charges of negligence. The employer is required to consider:

Whether the employee’s conduct was a reasonable reaction in the circumstances. The action and the reaction are required to be on a similar or the same level in order for provocation to be successful as a defence.

E.g., if an employee is slapped in the face, stabbing the employee who stabbed him/her would not be seen as a justifiable reaction to the initiating conduct. Moreso, it could be viewed as an excessive reaction.

E.g., if an employee is slapped in the face and slaps the employee who slapped him/her in the face or punches them, then the reaction could be viewed as self-defence to provocation since it can be viewed as a justifiable reaction to the initiating conduct.

Whether the employee’s conduct was an immediate reaction to the “provoking act” in that there is no premeditation involved before reacting.

Requirements for provocation:

The workplace provocation defence involves an involuntary, immediate reaction when a person finds themselves in a threatening situation. There can be no room for consideration of the facts or planning of the conduct—once such deliberation is present, the matter shifts to an intentional act, which no longer qualifies as an involuntary immediate reaction under this defence.

In the case of Tedco Plastics (Pty) Ltd v National Union of Metalworkers of SA & others (2000) 21 IlJ 2710 (LC), the requirements for provocation were listed as:

The reaction must be reasonable: ie, the provocation must be of such a nature to justify the physical reaction by means of assault; and
The reaction must be immediate and proportionate: ie. the reaction to the provocation needs to be immediate and does not provide any time for pre-meditation or consideration of a possible reaction. Furthermore, the reaction needs to be proportionate to the provocation itself.

The above matter entailed a female co-worker having been struck by a hydraulic pipe several times on the back in response to allegedly provoking her colleague. The response of the attacker was excessive in nature in comparison to the alleged provocation which took place.

Case Law:

In the case of Nelson Mandela Bay Metropolitan Municipality v Independent Municipal & Allied Trade Union on behalf of Tshabalala & others (2019) 40 ILJ 1021 (LAC), the court stated that:

“[26] The employee’s further argument that he acted in self-defence cannot avail him. The commissioner’s conclusion that ‘any reasonable person would have reacted in the manner [the employee] did’ and that ‘as a man, he could not walk away from the fight’, goes against the grain of conduct expected of an employee. In our law every person is expected to control his/her temper. In addition, there is no obligation on an individual to accept a challenge. Either employee could have walked away from the scene.”

The above matter entailed the production superintendent placing a handwritten note in the men’s cloakroom, reminding staff to keep the cloakroom clean to avoid a stench. The dispute was between the production superintendent (Majoni) and Yengo (the manager) who was responsible for overseeing the cleanliness of the cloakroom. There was an argument which ensued between them and Yengo called Majoni a coward and used Khosa words to say that he would hit him. There was a further exchange of words whereby the provocation escalated and resulted in physical assault.

In the case of Nampak Products (Pty) Ltd t/a Megapak v Commissioner for Conciliation, Mediation & Arbitration and Others (C 512/2018) [2021] ZALCCT 99 (LC), the court found that a dismissal of the employee whose conduct did not meet the requirements of provocation was substantially fair given the assault that occurred. It was further discussed in this case that all factors need to be considered when dealing with a matter where provocation is raised as a defence.

Conclusion:

Given that provocation is a sui generis defence, it must be assessed on a case-by-case basis. The Workplace Provocation Defence does not automatically absolve an employee from charges such as “fighting whilst on duty” or “assaulting a fellow employee,” nor does it necessarily justify a lesser disciplinary sanction like avoiding dismissal. The onus remains on the employee to prove that they were genuinely provoked, prompting the misconduct in question. Employers, in turn, must thoroughly investigate whether provocation occurred, evaluate its severity, and consider all surrounding circumstances before making a disciplinary decision.

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