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Thread: Is an assault sufficient reason for dismissal?

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    Is an assault sufficient reason for dismissal?

    We seem to have a couple of current threads on staff dismissal issues . 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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    Silver Member Greig Whitton's Avatar
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    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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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by BusFact View Post
    - 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.

    Quote Originally Posted by BusFact View Post
    - 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.

    Quote Originally Posted by BusFact View Post
    - 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.
    The trouble with opportunity is it normally comes dressed up as work.

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    Silver Member bones's Avatar
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    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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    Diamond Member Vanash Naick's Avatar
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    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.
    Last edited by Vanash Naick; 15-Feb-16 at 05:41 AM.
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    Platinum Member sterne.law@gmail.com's Avatar
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    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?
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    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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    Diamond Member HR Solutions's Avatar
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    Two people fighting is totally different to assault.
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    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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    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".

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