Labour Court reinstates employees dismissed for not reporting colleague's assault during braai
Labour Court backs employees dismissed for not reporting colleague's assault during after-work gathering.
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The Labour Court in Gqeberha in the Eastern Cape has dismissed an application by Saficon Industrial Equipment (Pty) Ltd, trading as Toyota Forklift, to overturn an arbitration award that reinstated three dismissed employees following an off-duty assault involving co-workers.
The court ruled that the company failed to prove a sufficient link between the assault, which occurred at North End Lake in June 2018, and its business operations. As a result, the dismissals were found to be substantively unfair.
The case arose from an incident in which one their colleagues, Thozamile Keli, was assaulted by three colleagues during a social gathering after work hours. The employer dismissed eight employees, accusing some of dishonesty for failing to report the assault and others of insubordination for refusing to provide cellphone access during the investigation.
Five of the dismissed employees later reached a settlement with the company, leaving the three men– Mvuyisi Merele, Wandile Mchiza and Siyanda Sali – to oppose the review application with the support of the National Union of Metalworkers of South Africa (NUMSA).
Judge Molatelo Robert Makhura upheld the arbitrator’s finding that the gathering was purely social, voluntary, and unrelated to the company’s business, and that the employer therefore lacked authority to discipline employees for the incident. Judge Makhura also found no evidence that the three remaining employees had witnessed the assault or had any obligation to report it.
On the cellphone access issue, the court agreed that the employer’s instruction was unreasonable, particularly as the employees were not informed of the purpose of the request and had personal information stored on company-issued devices.
“The company failed to establish any nexus between the assault and its operations or that the employees’ conduct caused workplace disharmony,” said judge Makhura.
The court dismissed the review application and confirmed the reinstatement of the three employees, with no order as to costs.
sinenhlanhla.masilela@iol.co.za
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