Notes: Strikingly Inappropriate — National Union of Metalworkers of South Africa obo Aubrey Dhludhlu & others v Marley Pipe Systems (SA) (Pty) Ltd [2022] ZACC 30; (2022) 43 ILJ 2269 (CC)

Abstract

In this note, I criticise the approach taken by the Constitutional Court in concluding that the employer acted unfairly in dismissing workers who took part in a march that culminated in a brutal attack on a senior manager. If the court had considered the facts in their totality, it could have been expected to find that the employees had committed acts of misconduct serious enough to warrant dismissal. Instead, it believed it could look no further than the ‘charge’, one of assault, that had been levelled by the employer. Examining the facts through the lens of a doctrine (common purpose) that is peculiar to criminal law, the court controversially concluded that no complicity in the offence could be inferred.