12 December 2024
Assault or attempted assault are serious issues that plague many working environments in South Africa. Given the serious nature of these matters, it is crucial for employers to ensure that they have thoroughly investigated each matter and that they have sufficient evidence that would not only distinguish cases of assault from attempted assault, but that would also assist employers in dealing with each matter appropriately.
Assault vs Attempted Assault
Assault generally involves the intentional infliction of physical harm or the threat of harm against someone else. In contrast, attempted assault refers to actions taken by an individual toward committing assault but not successfully completing the act. However, legally not every situation warrants a dismissal as an appropriate sanction. Evidence is a crucial determining factor in the decision to dismiss an employee. It serves as a record of the incident and the reasoning, as well as it enhances the credibility of the dismissal process. It shows that decisions are based on factual information rather than personal biases or hearsay.
Supporting evidence to strengthen a case
To strengthen a case for dismissal related to assault or attempted assault, employers should prioritize the collection of important evidence, which is outlined below:
- Witness Testimonies: Statements from fellow staff members who witnessed the incident can offer essential context and substantiate the allegations.
- Physical Evidence: Any tangible evidence, such as photographs of injuries, footage of the incident taking place, audio records of the incident occurring, damaged property, or objects involved in the incident, can strengthen the case for dismissal.
- Documentation: Official records, such as police reports, medical records, or incident reports, can help establish the facts of the case.
- Self-Defence Claims: When relevant, evidence substantiating a claim of self-defence can be crucial in assessing the appropriateness of the actions in question.
- Character References: Testimonies about the employee’s past behaviour and temperament can be relevant and provide a pattern of their behaviour, especially if self-defence is claimed.
- Procedural Documentation: Records outlining the steps taken by the employer in response to the incident, including any investigations or meetings conducted, can demonstrate adherence to due process.
In the event that there is not enough evidence
If there is no proof to support a case of attempted assault or assault, several issues may arise:
- Difficulty in Justifying Dismissal: Employers may find it challenging to justify the dismissal of an employee, especially if such dismissal, could lead to the reinstatement of an employee. Without sufficient evidence, an employer could face legal repercussions.
- Legal Risks: Without sufficient evidence, the employer may face legal risks, such as wrongful termination claims, which can result in financial penalties or damage to their reputation.
- Inability to Proceed with Dismissal: Employers may struggle to justify terminating an employee without credible evidence. This could lead to the reinstatement of the employee if they challenge the dismissal.
Case law on Assault and Attempted Assault
In Vereeniging Refractories vs NETU obo Botes (1998 3 BALR 377), the Court noted that there are two definitions of assault: an attempted assault, and “the intentional creation of a reasonable apprehension of harm.” Regarding this last definition, the elements of proof are explained as follows:
- Intentional: The perpetrator needs to act intentionally in “scaring” or threatening the other person into believing that the harm is immediate. Accidental or unintentional acts do not count as assault;
- Reasonable Apprehension: Reasonable apprehension means that the victim apprehends or perceives that a harm or threat of harm is being directed towards him/her. Thus, if the victim is not aware of the threat (such as when a person aims a weapon at them behind their back without them knowing), it may not be enough to prove an assault;
- Harm: The harm can be either a threat of physical harm (such as a punch or kick, etc.), or a threat of unwanted, offensive contact (such as a sexually suggestive touch or embrace).
In Saccawu obo A Carolus v Freshmark (Case number 16835-18), the Court noted the following: “There is no doubt that the rule against assault is an important one. An employer is obliged to provide its employees with a safe working environment and an assault by one employee on another (whether a permanent employee or contracted worker) causes a breach of this duty. For this reason, the Code of Good Practice: Dismissal (Schedule 8 to the Labour Relations Act 66 of 1995) lists assault as one of the valid grounds for dismissal for a first offence with no requirement for prior warnings.” In Adcock Ingram Critical Care v CCMA (2001) ILJ 1799 (LAC), the Labour Appeal Court held that threat of assault is sufficient to justify a dismissal, and in Ntshangase v Alusaf (Pty) Ltd (1984) 5 ILJ 336 (IC) the same principle was expressed.
Conclusion
In summary, dismissing an employee for assault or attempted assault is a serious issue that requires careful thought and thorough investigation. The importance of evidence in these situations cannot be overstated, as it forms the basis for justifying the dismissal decision. Various types of evidence, such as witness testimonies, physical evidence, procedural documentation, and character references have each a role to play in building a clear and credible case. By emphasizing the collection and assessment of relevant evidence, employers not only protect their company’s integrity but also ensure compliance with legal and ethical standards. Ultimately, a well-supported and an evidence backed-up dismissal promotes a safe and respectful workplace while upholding principles of fairness and due process.
