Fighting in the Workplace Is dismissal always the Answer?

When dealing with instances of fighting or forms of physical altercations in the workplace employers normally adopt a “no-nonsense approach” normally dismissing the aggressor or both the parties involved. The question must however be posed, is dismissal always the answer?

In the case of Anglo Operations Ltd (Bank Colliery) v Tokiso Dispute Resolution (Pty), an employee was relieved of his duties for assaulting a fellow colleague who had insulted him in the presence of other colleagues. The dismissal dispute was privately arbitrated where the arbitrator deemed the dismissal to be procedurally and substantively unfair. The employer sought to have the decision reviewed, on the basis that the dismissal was applied consistently with another assault matter faced by the company and argued that a lessor sanctions may only be applied where the altercations were not physical in nature. On review, the Court found, “that the arbitrator’s finding of provocation could not be faulted even though the employee had probably overreacted to the provocation.” The principle that may be drawn from this decision is that provocation may be accepted as a defence to a charge of assault as long as the reaction is within reason.

In the case of NUMSA obo Madobeng vs Macsteel Tube and Pipe it was established that the altercation between the employees was not tantamount to assault and that the Applicant been provoked by her colleague. It was held further that the employer had overstated the gravity of the incident and failed to consider the blatant element of provocation in mitigation, the arbitrator found the dismissal to be unfair.

In a Nutshell: The matters discussed herein illustrate that, even in grave cases of assault, the CCMA, Bargaining Councils and Labour Court will not always deem dismissal to be an appropriate sanction. Each incident of fighting and or confrontation in the workplace must be considered on its own merits and the circumstances specific to each case are vital in determining whether dismissal for assault would be appropriate

Remember MISA is just a phone call away!