# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Is an assault sufficient reason for dismissal?

## BusFact

We seem to have a couple of current threads on staff dismissal issues  :Frown:  . A sign of stressful times perhaps.

In this case an employee assaulted another employee at his work station, during work hours. Do we have reasonable grounds for dismissal or is this one of those cases where warnings should be issued? The facts are as follows:

- The aggressor (A) approached the victim (V) at V's work station.
- The two have a history of not liking each other. 
- The spark for this particular incident was V pointing out to the manager that A was not at his work station.
- A threw the first punch after a short heated discussion.
- A continued to throw punches and then delivered several kicks to the ribs of V whilst he was down on the ground and added a few punches for good measure.
- This was not a quick hand bag incident, it lasted for probably 20 sec in a very one sided fight.
- It seems that V will be opening a criminal case of assault against A.
- V seems to have received some pretty serious injuries in terms of superficial swelling and bruising (A was wearing safety boots). it would not surprise me if ribs are broken.
- The incident is captured on video.

Other info which is probably irrelevant to the case:

- Both are generally poor workers. Poor punctuality, regular absenteeism and poor work ethic are common in both employees. Although no formal disciplinaries or warnings issued in either case.
- A is the son of the factory manager, who is pleading leniency.
- V has worked for the company for about 25 years and A about 5 years.
- The atmosphere is a bit unpleasant at the moment. Not sure if its one of fear yet, but I don't think A is good for company morale even before this incident. V is not much better, but over the years the other staff have just grown to accept his laziness.
- A's brother, another employee was marginally involved in the fight which made it a bit of a one sided contest. Having 4 employees from one family in a company of about 20 is not good for morale, especially when one of them is the manager and one is a general slacker (A). Nepotism and preferential treatment comes to mind.

What are the options open to the company?

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## Greig Whitton

The only sensible option is dismissal and, frankly, you should have fired him on the spot (summary dismissal without notice is justifiable and lawful in extreme circumstances, such as assault).

Apart from the fact that assault is an inherently dismissible offence, retaining this employee will destroy morale at work as well as leave your business wide open to liability claims if he is involved in a similar incident in the future (i.e. you knew that this guy had a history of violent behaviour but chose to employ him anyway).

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## Dave A

> - The spark for this particular incident was V pointing out to the manager that A was not at his work station.
> - A threw the first punch after a short heated discussion.


Unacceptable retaliation.




> - A is the son of the factory manager, who is pleading leniency.


Understandable, but there are few things more detrimental to morale than giving family members significantly unfair preferential treatment in a business.




> - The atmosphere is a bit unpleasant at the moment. Not sure if its one of fear yet, but I don't think A is good for company morale even before this incident. V is not much better, but over the years the other staff have just grown to accept his laziness.


From a leadership point of view, I don't think the company has a choice but to take clear, decisive action that sends an unambiguous signal.

Based on your evidence, I suggest 
Dismiss A
A written warning (or verbal warning/caution as minimum) to the brother (for participating)
Spend a little time counselling the factory manager as to why management has absolutely no choice in the matter.

If you don't dismiss, the credibility of management will surely be shot to hell.

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## bones

where i use to work 20 or so years ago  
the company policy was that if anyone 
assaults anyone it is immediate 
dismissal 

normally the cops also get involved so
that the case file can be used against 
the employee in future depending on 
how badly the assault was

you really do not need a angry person 
working for you it is unsafe for you and 
your other employees

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## Citizen X

Assault is a serious transgression and warrants dismissal as a sanction. Item 4 of Schedule 8 of the LRA states

_Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others physical assault on the employer, a fellow employee, client or customer and gross insubordination. 
_
It helps to have a comprehensive disciplinary code and procedure in place.

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## sterne.law@gmail.com

The brother's participation is maybe not as simple as it seems.
Depends on what constitutes 'marginal'.
He entered the fray, unprovoked and was not defending his brother (as the brother was handling well).

There is also a question mark over the manager - he was nearby but allowed it to get out of hand.
It may have all happened very fast, but there is a question mark over his inability to handle. It may not need discipline but a small word may be required.
Quite possibly he was just happy to see lazy get a slap upside of the head?

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Citizen X (17-Feb-16)

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## Entropy Group

When two parties fight in a school play ground, it is commonly accepted that the person who threw the first punch, is the aggressor. In the workplace, this is not necessarily the case. All three parties, i.e. A, V and the brother, should be suspended immediately with notice of a disciplinary hearing. The properly constituted hearing should hear testimony from all the accused and witnesses to ascertain guilt, provocation and take appropriate action. Terminating one party to a fight summarily, cold be seen as favouritism and/or discriminatory. Generally speaking, assault is a "gross misconduct" offense, for which the sanction of dismissal is not uncommon, but there still needs to be procedural fairness. Fumbling the procedural issue may result in reinstatement of the dismissed worker, which would adversely affect morale and management integrity.

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## HR Solutions

Two people fighting is totally different to assault.

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## BusFact

There does not seem to be much dispute as to what happened in this case. V provoked A by always reporting him to management whenever he was away from work station. He did not like him, reason unknown, and made it quite clear.

A responded to this repeated "provocation" by eventually throwing a punch at V. He then continued to hit and kick V even when he was down on the floor. On the video there is no obvious image of V throwing any return punch, although the fight disappears behind a van for a few seconds. He simply appears to be trying to protect himself.

A is very apologetic about the whole incident and regrets it, but insists the provocation got to him.
V appears to still be very upset about the whole incident and is pursuing the criminal case of assault.

So the general facts are not really in dispute, it now just comes down to the correct decision at the hearing.

On the semantics:
You can assault someone by doing as little as poking them in the chest with a finger. Fighting is just two people assaulting each other. However, the police and the criminal system will take cases of one sided fights more seriously. This scenario is what we would typically think of when we use the term assault, however legally speaking its much broader.

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Dave A (29-Feb-16)

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## BusFact

As feedback for those of you who contributed to this thread, the employee has been dismissed. Thanks for all your level headed posts, it helps to get advice when you can't see the wood for the trees.

However the soap opera does not end there. The brother will be issued with his notice of disciplinary action next week.

In addition the victim has been accused by the aggressor of threatening to have him fired on numerous occasions, and apparently there are several witnesses to this. So my next question is whether threatening a fellow employee that you will get them fired is something that we can discipline on. Its pretty obvious that he did indeed attempt to carry out this apparent threat as he has repeatedly pointed out to management whenever the aggressor was shirking his duties. They do not even work in the same section of the factory, nor did he ever report anyone else. Its also a chronic case of the pot calling the kettle black.

In any event, I do need to address it and was wondering what you guys thought the severity of such a case should be and what would he even be accused of having done?

Then I am going to rename the place "fawlty towers".  :Mad:

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## bones

> As feedback for those of you who contributed to this thread, the employee has been dismissed. Thanks for all your level headed posts, it helps to get advice when you can't see the wood for the trees.
> 
> However the soap opera does not end there. The brother will be issued with his notice of disciplinary action next week.
> 
> In addition the victim has been accused by the aggressor of threatening to have him fired on numerous occasions, and apparently there are several witnesses to this. So my next question is whether threatening a fellow employee that you will get them fired is something that we can discipline on. Its pretty obvious that he did indeed attempt to carry out this apparent threat as he has repeatedly pointed out to management whenever the aggressor was shirking his duties. They do not even work in the same section of the factory, nor did he ever report anyone else. Its also a chronic case of the pot calling the kettle black.
> 
> In any event, I do need to address it and was wondering what you guys thought the severity of such a case should be and what would he even be accused of having done?
> 
> Then I am going to rename the place "fawlty towers".


in my days working at a plant the rules 
where simple if you get into a physical 
fight both parties are dismissed it didnt 
matter if the one didnt fight back both
where dismissed i cannot tell you how 
they handled it at the CCMA but as  
you say both are guilty so get rid of 
them both but speak to a professional

if someone tells someone else they will 
get them fired then that is grounds for 
a dismissal and it is grounds for 
aggravation both parties are guilty so 
let them walk if you can

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## Jacob Zuma

YES!!!!

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## Greig Whitton

> if someone tells someone else they will get them fired then that is grounds for a dismissal


No, it almost certainly isn't, unless:

(a) This is not the first time that the employee has threatened to get someone else dismissed;

(b) Graduated disciplinary measures were applied for previous incidents (e.g. final written warning);

(c) The employee was afforded a reasonable opportunity to correct their behaviour (e.g. interpersonal training); and

(d) The exact same disciplinary process has been consistently applied for other employees engaging in the same or similar behaviour.

With a few extreme exceptions (e.g. threatening to murder someone), you can't fire someone on the spot for _saying_ that they are going to do something when they haven't actually done anything.

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## bones

> No, it almost certainly isn't, unless:
> 
> (a) This is not the first time that the employee has threatened to get someone else dismissed;
> 
> (b) Graduated disciplinary measures were applied for previous incidents (e.g. final written warning);
> 
> (c) The employee was afforded a reasonable opportunity to correct their behaviour (e.g. interpersonal training); and
> 
> (d) The exact same disciplinary process has been consistently applied for other employees engaging in the same or similar behaviour.
> ...


ok i can point you to a steel 
plant it is closed last time i 
saw it on the news there 
policy was if 2 employees 
fight both get fired that is 
it 

the part where he told the 
guy he will get him fired is 
not ethical but that is not 
the point i know for a fact 
that when i worked at that 
steel plant long time ago if 
you fight both goes and 
that remained policy till it 
closed down this year

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## Greig Whitton

> the part where he told the guy he will get him fired is not ethical but that is not the point


Actually, this is exactly the point because just one post earlier you stated this:




> if someone tells someone else they will get them fired then that is grounds for a dismissal


Getting into a fight and saying that you are going to get someone fired are two completely different things.

Scenario 1: Employee A says that he is going to get Employee B fired. Employee B responds by initiating a fight.

Scenario 2: Employee A says that he is going to get Employee B fired. Employee B responds by lodging a complaint with management.

In Scenario 1, you might dismiss both employees. But if you did dismiss Employee A, it would likely be for what he did (i.e. fighting with another employee), not for what he said.

In Scenario 2, you almost certainly would not dismiss Employee A unless this was a repeat offence. Instead, you would probably organise a discplinary hearing and issue a final written warning.

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BusFact (07-Mar-16)

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## bones

> Actually, this is exactly the point because just one post earlier you stated this:
> 
> 
> 
> Getting into a fight and saying that you are going to get someone fired are two completely different things.
> 
> Scenario 1: Employee A says that he is going to get Employee B fired. Employee B responds by initiating a fight.
> 
> Scenario 2: Employee A says that he is going to get Employee B fired. Employee B responds by lodging a complaint with management.
> ...


so am i not allowed to have an 
opinion now ok please include 
the bit where i said that he must 
speak to a professional next time
it is only fair is it not 

see i did use the word IF there 
and i did use the word professional

meaning if possible and getting 
a professional was my words

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## bones

just a question if one employee tells the 
other employee that they will get them 
fired and is successful what does that 
mean for the other employees that saw 
it

you do want to consider that first also  
consider labor relations between the 
employer and employees he cannot 
let it slide because this employee now 
have the ability to fire other employees 

i can argue that dismissal for both the 
employees are in the best interest of 
the company because you cannot 
allow this type of behavior    

just remember what was the cause 
of the aggravation it can be argued 
that the employee that stated that 
that he will get the other one fired 
caused the argument deliberately to 
get the other employee fired hence 
the one manipulated the situation 
and the other got aggressive so in 
my opinion both are guilty and the 
CCMA will have a hell of a time 
proving that the employee did not 
intent to manipulate the situation 
or outcome

so if i got fired because of someone 
trying to take my job i will go to the 
CCMA and court because he was 
successful 

if i am the employer i now sit with 
a employee that manipulate a 
situation to get someone fired how 
can i trust that employee ever again 

if i was the employer i will speak to a 
professional and see what can be 
done to get both employees dismissed

note the getting a professional bit it is 
important

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## BusFact

> Getting into a fight and saying that you are going to get someone fired are two completely different things.
> 
> Scenario 1: Employee A says that he is going to get Employee B fired. Employee B responds by initiating a fight.
> 
> Scenario 2: Employee A says that he is going to get Employee B fired. Employee B responds by lodging a complaint with management.
> 
> In Scenario 1, you might dismiss both employees. But if you did dismiss Employee A, it would likely be for what he did (i.e. fighting with another employee), not for what he said.
> 
> In Scenario 2, you almost certainly would not dismiss Employee A unless this was a repeat offence. Instead, you would probably organise a discplinary hearing and issue a final written warning.


Thanks, that was my gut feel too. Just looking for confirmation.

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## bones

so the other guy walks free 
messed up world we live in

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## Greig Whitton

> so am i not allowed to have an opinion now


Having an opinion is fine. Posting factually incorrect advice that could land someone in serious trouble if they follow it is not fine. And relying on a "be sure to speak to a professional" as a catch-all disclaimer doesn't make it fine.

Many of my small business clients have paid expensive penalties after a CCMA or Labour Court hearing because some cowboy told them that it was perfectly OK to hire and fire as they please. We have laws in this country that regulate employment. If you want to share your opinion about those laws, then go right ahead. But if you want to tell people how those laws work when you don't actually know, then I'm going to call you out on it.

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adrianh (09-Mar-16), Entropy Group (08-Mar-16)

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## bones

> Having an opinion is fine. Posting factually incorrect advice that could land someone in serious trouble if they follow it is not fine. And relying on a "be sure to speak to a professional" as a catch-all disclaimer doesn't make it fine.
> 
> Many of my small business clients have paid expensive penalties after a CCMA or Labour Court hearing because some cowboy told them that it was perfectly OK to hire and fire as they please. We have laws in this country that regulate employment. If you want to share your opinion about those laws, then go right ahead. But if you want to tell people how those laws work when you don't actually know, then I'm going to call you out on it.


i did say seek professional
help did i not why do you 
not want to acknowledge
that fact

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## Entropy Group

I'm having a similar kind of discussion with another party on another thread. I think it is cardinally important that advice should be sound and tested, or should indicate that its an opinion. The point of this site is to offer advice and/or opinions, maybe even a bit of empathy, but one should advise what one knows, or the credibility of this site will become tarnished.

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## bones

> I'm having a similar kind of discussion with another party on another thread. I think it is cardinally important that advice should be sound and tested, or should indicate that its an opinion. The point of this site is to offer advice and/or opinions, maybe even a bit of empathy, but one should advise what one knows, or the credibility of this site will become tarnished.


and seeking professional help is 
sound advice is it not

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## Dave A

One of the things I love about the forum format is that a post containing poor advice tends not to stand the test of time - almost invariably "the truth will out" as subsequent posts massage the issue.

One of the things that does disappointment me though is that the engagement isn't always as gracious as it could be. There are two main reasons I suggest it is prudent to be civil about these things -

Sometimes the "wrong" post is genuinely useful as it actually prompts the correct answer, or gives valuable insight into where thinking can go wrong.It is near inevitable that at times we will make a mistake, or get something wrong. When that day arrives for you, how do you wish to be treated?


We need to be very careful when we come down hard on views that differ from our own....

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adrianh (09-Mar-16), Citizen X (09-Mar-16), Entropy Group (09-Mar-16), Justloadit (09-Mar-16)

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## adrianh

What we really need is is a list of who the people are that really know what they are talking about. Long time locals know who to turn to for well educated advice but unfortunately the newcomer is left to their own devices

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## adrianh

> Having an opinion is fine. Posting factually incorrect advice that could land someone in serious trouble if they follow it is not fine. And relying on a "be sure to speak to a professional" as a catch-all disclaimer doesn't make it fine.
> 
> Many of my small business clients have paid expensive penalties after a CCMA or Labour Court hearing because some cowboy told them that it was perfectly OK to hire and fire as they please. We have laws in this country that regulate employment. If you want to share your opinion about those laws, then go right ahead. But if you want to tell people how those laws work when you don't actually know, then I'm going to call you out on it.


I am grateful that you are willing to share your professional knowledge with us. Opinions are great but facts are better.

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## bones

well maybe i can find the new acts 
and just copy and paste the thing 
every time any question is asked 
but what will that help anyone

also i think people do handle there 
problems differently and sometimes 
those creative solutions can work 

but if you only want to speak to 
legal advisors i am sure you can 
contact them and pay for there 
services and knowledge it would 
be abusive to expect them to 
answer your every question 
without compensation of some 
kind they did study for it made it 
there job and are professional and 
if they do contribute here it is 
very cool of them to do so but we 
cannot expect them to sacrifice 
there time on a permanent bases

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