Dismissal and Strike Violence in South Africa An Exercise in Juxtapose

ABSTRACT Ordinarily, an employee can be dismissed for misconduct only if the evidence, on a balance of probabilities, suggests that the individual employee is guilty of the misconduct. In the South African context, it is relatively uncontroversial that violence during a strike, whether protected or unprotected, constitutes misconduct and warrants disciplinary action by the employer, possibly leading to dismissal. However, in the volatile atmosphere of a strike in which violence often erupts spontaneously, it is not always possible for the employer to identify the actual perpetrators of violence. Furthermore, dismissal of an employee for participating in a protected strike in the absence of a sufficient link between the violence and the employee risks a finding that the dismissal is automatically unfair, which carries more onerous consequences for the employer. In a trilogy of judgments since 2019, the South African Constitutional Court considered various techniques used by employers, some borrowed from criminal law, to ameliorate the difficulty of linking individual strikers with violence in the absence of direct evidence speaking to their culpability. These include notions such as ‘common purpose’ and ‘derivative misconduct’. Through an exercise in juxtapose, this article distils, questions and demonstrates the impact of these judgments.