Nampak Products (Pty) Ltd t/a Megapak v CCMA and Others (C512/2018) [2021] ZALCCT, delivered on 24 June 2021
When provocation is advanced as a mitigating factor in an assault, a critical question is whether the extent of the provocation was such that it would have caused any reasonable person in the position of the assailant to have responded in that way. Even if a co-worker's behaviour is petty, insulting, irritating and challenging, this does not amount to justifiable provocation: an assault under these circumstances cannot be excused or minimized on the ground of provocation.
Facts:
M, a production superintendent, had walked into Y's office with a handwritten notice about hygiene, which Y had stuck up in the men's cloakroom. In doing so, Y had not followed the correct procedure and M wanted him to apologise. M felt that the handwritten notice reflected badly on him as the person in charge of those facilities and was trying to assert the scope of his authority. Y was M's superior, a Key Accounts Manager. Raised voices drew in other staff, and the disagreement continued in the office of the head of HR. There were accusations of lying. Y called M a coward and said he would hit him. M claimed he said that if Y hit him he would make sure that he was fired. The HR Manager pleaded with Y to desist and told M to go to his office. M then moved to his own office, a few meters away. Y forced the door open. M said to Y "Hit me, hit me, do you want to hit me?" It was at that point that Y struck M and hit him on the shoulder as M turned his body away to avoid the blow. Y was dismissed for assaulting M.
At the CCMA Y challenged the fairness of the dismissal on the basis that the sanction was too harsh. The Commissioner concluded that Y had been provoked into assaulting M, who had been goading him and encouraging him to hit him so that he would be fired. The commissioner held that M suffered no injury as a result of being struck on the shoulder, and there was no evidence that operations at the company had been disrupted by the incident. Moreover, she decided that an apology tendered a couple of days later by Y, asking M to forgive him, was genuine. The commissioner found that the dismissal was substantively unfair and reinstated Y without backpay and with a final written warning.
On review at the Labour Court, the court held that, while the arbitrator cannot be faulted for finding that there was provocation by M, what she failed to consider was whether Y's conduct was reasonable in the context and whether it was an immediate response to the provocation. The LC said that Y could have walked away but instead pursued M to his office where the assault took place. His assault on M. was not an instantaneous unreflective reaction to M's conduct, but was a culmination of a sequence of events, the path of which he could and should have altered at more than one point after the brief meeting in the HR office. The court was satisfied that the commissioner could not reasonably have concluded that Y's conduct, even if it was petty, insulting, irritating and challenging, could justifiably have provoked Y, a senior manager, to behave as Y did. As such, the assault could not be excused or minimized on that ground.
Y was guilty of the charges for which he was dismissed. Y failed to establish that his assault of M was a reasonable response to provocation. Y's dismissal was held to be substantively fair.
Extract from the judgment:
Lagrange J:
[35] The arbitrator cannot be faulted for finding that there was provocation by Majoni. The crux of the applicant's criticism of the arbitrator's finding whether the provocation was of such a degree that no reasonable arbitrator could have concluded that the assault was an understandable response to it. The mere existence of provocation is obviously not the end of the inquiry. When provocation is advanced as a mitigating factor in an assault, a critical question is whether the extent of the provocation was such that it would have caused any reasonable person in the position of the assailant to have responded in that way.
[36] In the case of Tedco Plastics (Pty) Ltd v National Union of Metalworkers of SA & others (2000) 21 ILJ 2710 (LC), the Labour Court summarised the principles governing provocation as applied in the criminal and delictual contexts and applied them in the employment context. The court found in the matter before it that there was no evidence to support a finding of provocation. Moreover, it held, albeit obiter, that the arbitrator had failed to understand and correctly apply the law relating to provocation as a mitigating factor:
"[15] ... Provocation is recognized in our criminal law and law of delict as a basis for excusing or mitigating the consequences of what would otherwise clearly be criminal or delictual conduct. The debate has not been settled as to whether provocation removes the unlawfulness of the conduct, or merely mitigates (or extinguishes) the punishment or damages arising therefrom. (See Neethling, Potgieter & Visser Law of Delict (3 ed) at 91-2 and Snyman Criminal Law (2 ed) at 183ff.) Whatever the correct legal categorization, however, the very fact that a person's actions were a reaction to the conduct of another does not mean that the law will come to their aid. Certainly, in the case of delictual liability, it appears that two requirements will have to be met, namely, that the provocative conduct must be such that the reaction to it by way of physical assault was reasonable, ie would a reasonable person in the position of the person have acted as he did in the face of the provocation; and, that the conduct must be an immediate and reasonable retaliation, ie it must follow immediately on the provocation and not be out of proportion to the nature and degree of the provocative behaviour (Neethling et al at 94)."In that case, the court found that the arbitrator could not have concluded that provocation could be advanced as a mitigating factor or as a defence because:
36.1 the assault in question was not defensive but aggressive in nature;
36.2 it occurred after the victim had already left the scene and was thus not an immediate reaction, but marked the commencement of the new chain of events;
36.3 it was completely out of proportion to the conduct of the victim of the assault, and
36.4 was contrary to the arbitrator's own finding that the employee had decided to take the law into his own hands, which implied a rational decision to retaliate and not simply an immediate response.
[37] In this case, the arbitrator appears to have assumed that the mere existence of provocative conduct, as such, mitigated the seriousness of the assault on Yengo. What she failed to consider was whether Yengo's conduct was reasonable in the context and whether it was an immediate response to the provocation. On any version of events, it is clear that Yengo could have walked away from Mapela's office when Majoni left. Even when Majoni commented that Yengo, or the notice, did not make sense, it is difficult to see how that could justify Yengo pursuing Majoni all the way to his office, resisting the physical efforts and pleadings of the HR manager to restrain him and overcoming Majoni's attempt to prevent him entering his office. Yengo already had a further opportunity to pause and walk away when Mapela stood between them and Swartz's door. He was being asked to desist with the aggressive conduct he was displaying, by another senior colleague. Instead of heeding Mapela's advice, he chose to follow Majoni into Majoni's office even as Mapela tore off his sleeve in an effort to restrain him. The inescapable conclusion is that he intended to 'have it out' with Majoni in a physical way. Even if Majoni taunted him to hit him, all the evidence pointed to the conclusion that this was Yengo's intended course of action in any event.
[38] In Nelson Mandela Bay Metropolitan & Allied Trade Union on behalf of Tshabalala & others (2019) 40 ILJ 1021 (LAC), a case which involved a physical fight between two senior employees in the presence of their subordinates, the LAC said the following:
"[26] The employee's further argument that he acted in self-defence cannot avail him. The commissioner's conclusion that 'any reasonable person would have reacted in the manner [the employee] did' and that 'as a man he could not walk away from the fight', goes against the grain of conduct expected of an employee. In our law every person is expected to control his/her temper. In addition, there is no obligation on an individual to accept a challenge. Either employee could have walked away from the scene." [emphasis added]Nothing prevented Yengo from lodging a grievance about Yengo's conduct in so far as he perceived to be disrespectful or insulting to him. His assault on Majoni was not an instantaneous unreflective reaction to Majoni's conduct, but was a culmination of a sequence of events the path of which he could and should have altered at more than one point after the brief meeting in Mapela's office.
[39] In light of the above, I am satisfied that the arbitrator could not reasonably have concluded that Yengo's conduct, even if it was petty, insulting, irritating and challenging, could justifiably have provoked Yengo, a senior manager, to behave as Yengo did. As such, the assault could not be excused or minimized on that ground.
Conclusion
[40] In the circumstances, and given Mapela undisputed evidence of the precedent that condoning such an assault would have created, it is difficult to see how the arbitrator could have concluded that dismissal was not an appropriate sanction. This is all the more so, because the finding on the second charge must also be set aside, which means that Mapela's anger and aggression towards Majoni had not been dissipated after he had punched him.