The latest Labour Court judgment on common purpose has been delivered in a matter involving Dis-chem.
Employees embarked on a protected strike. There were various acts of violence and disorderly conduct during the strike.
The Labour Court (per Van Niekerk J) granted an interdict against breaches of the picketing rules. Breaches continued, and the Labour Court (per Snyman AJ) granted an interdict prohibiting picketing.
After these orders were made, there were further incidents, including an incident involving a bus which transported employees to 2 Dis-chem stores where some employees disembarked and disrupted operations at the stores. Others remained on the bus and sang struggle songs.
The employees were dismissed and they challenged the fairness of their dismissals. One of their challenges pertained to employees who remained on the bus. It was argued that they were unfairly dismissed based on the principles on common purpose.
The court found that those who had remained on the bus had not acted in concert with those who disembarked from the bus, as there was no evidence that they had an intention to commit violence and they had shown no outward manifestations of support for those who had disembarked from the bus (other than singing struggle songs).
The court accepted that “singing struggle songs is part and parcel of the culture of resistance, and is a feature of labour disputes, political rallies and service delivery protests”.
However, the court found that the conduct of those who remained on the bus was nonetheless serious misconduct, as it was in breach of the two court orders, and that although common purpose had not been established, they had shown allegiance with the unlawful acts of their colleagues.
The court also found that an inconsistency challenge raised by the employees was unsustainable.
As a result, the court declined to interfere with the Commissioner’s finding that their dismissal was substantively fair.
Read a copy of the Labour Court judgment on common purpose here:
NUPSAW v Dischem & 2 Others J2086-20 & JR2111-20 Judgment 050124
