Provocation can be described as an act whereby a person acts out of anger due to being taunted by another person and thus a retaliation to the taunting. Provocation is often referred to as the temporarily “loss of control” due to being taunted by another person.
Provocation may occur through verbal and physical actions, and being provoked may be an act of self-defence to assault. However, the act of self-defence should be an immediate and sudden act, and the offender should not have had time to “cool off”, as our laws suggest that should a “cooling off” period exist, then the defence of provocation may not be successful, as it may be construed that the offender had time to think about his assault and therefore the assault was intentional.
The test in proving provocation is the reasonable man test, that is “would a reasonable person in the same circumstances have acted in the same way?”. The proof has to be on a balance of probabilities. Once proven, provocation needs to be taken into account as a mitigating factor when an employee has been charged with assault.
Provocation as a defence has been successful in the following cases, where a person was provoked through verbal and / or physical actions:
In Metrorail vs SATAWU an employee assaulted a Manager. The Manager alleged that the assault was due to the employee’s reluctance to work under a fellow employee. However, the arbitrator found that the Manager made racist remarks towards the subordinate employee which had provoked the assault. The mitigating circumstance rendered the penalty of dismissal too harsh and the employee was reinstated.
In FEDCRAW obo Boymans the employee was dismissed for assault. However, the employee brought witnesses to the arbitration hearing that testified that she acted in self-defence. The employer could not provide any evidence to the contrary and as such the arbitrator found that the employer could not prove that the employee was guilty of assault and declared the dismissal to be unfair.
In Vereeniging Refractories vs NETU obo Botes, the employee was dismissed for assaulting a fellow colleague. The employee testified that the co-employee had sworn at him, hit him and kicked him. The employee then saw a knife in the co-employee’s hand and pushed him away in self-defence. The arbitrator found that it was the employer’s duty to prove that the employee was guilty and that the employer had failed to prove on a balance of probabilities that the employee did not act in self-defence. As a result, the dismissal was found to be unfair and the employee was reinstated.
In a Nutshell Provocation must be taken into account as a mitigating factor when an alleged assault took place in the work environment. Assault in itself does not automatically merit a dismissal.
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|Follow up on: Fighting in the Workplace Is dismissal always the Answer?|