9 October 2024
Provocation is one of the key defences for charges of assault or fighting on duty in the workplace. In our employment law context, provocation as a defence potentially affects the outcome of disciplinary inquiries. Understanding how provocation is evaluated and applied under South African labour law is crucial for both employers and employees to ensure fair and just handling of workplace conflicts .
What is provocation?
Provocation is described as a wrongful act or conduct from one person towards another which deprives the other person/s of their power to react or have self-control. In the context of a workplace, it can be described as the retaliation of an employee against some provoking conduct or statement made by another employee. It can further be stated that provocation is accepted as a defence in the South African legal system. However, the question arises of what happens when an employee raises provocation as a defence in a disciplinary inquiry?
When an employer is faced with such a defence in a disciplinary inquiry, the employer is required to consider all the relevant factors surrounding the misconduct, taking into account the requirements for provocation as a defence as well as the reasonable man test.
When considering provocation, the employer should apply the principle of “the reasonable man test”, being the same test that is used in charges of negligence. The employer is required to consider:
- Whether the employee’s conduct was a reasonable reaction in the circumstances. The action and the reaction are required to be on a similar or same level in order for provocation to be successful as a defence.
Eg.: If an employee is slapped in the face, stabbing the employee who stabbed him/her would not be seen as a justifiable reaction to the initiating conduct. Moreso, it could be viewed as an excessive reaction.
Eg.: If an employee is slapped in the face and slaps the employee who slapped him/her in the face or punches them then the reaction could be viewed as self-defence to provocation since it can be viewed as a justifiable reaction to the initiating conduct.
- Whether the employee’s conduct was an immediate reaction to the “provoking act” in that there is no pre-meditation involved before reacting.
Requirements for provocation:
Provocation as a defence involves an involuntary immediate reaction to when a person finds themselves in a threatening situation. There can be no room for consideration of the facts and the planning of the conduct, and once this is present the issue then involves intention to act in a certain manner and no longer qualifies as an involuntary immediate reaction.
In the case of Tedco Plastics (Pty) Ltd v National Union of Metalworkers of SA & others (2000) 21 IlJ 2710 (LC), the requirements for provocation were listed as:
- The reaction must be reasonable: ie. the provocation must be of such a nature to justify the physical reaction by means of assault; and
- The reaction must be immediate and proportionate: ie. the reaction to the provocation needs to be immediate and does not provide any time for pre-meditation or consideration of a possible reaction. Furthermore, the reaction needs to be proportionate to the provocation itself.
The above matter entailed a female co-worker having been struck by a hydraulic pipe several times on the back as a response to allegedly provoking her colleague. The response of the attacker was excessive in nature in comparison to the alleged provocation which took place.
Case Law:
In the case of Nelson Mandela Bay Metropolitan Municipality v Independent Municipal & Allied Trade Union on behalf of Tshabalala & others (2019) 40 ILJ 1021 (LAC), the court stated that:
“[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.”
The above matter entailed the production superintendent placing a handwritten note in the men’s cloakroom reminding staff to keep the cloakroom clean to avoid a stench. The dispute was between the production superintendent (Majoni) and Yengo (the manager) who was responsible for overseeing the cleanliness of the cloakroom. There was an argument which ensued between them and Yengo called Majoni a coward and used Khosa words to say that he would hit him. There was a further exchange of words whereby the provocation escalated and resulted in physical assault.
In the case of Nampak Products (Pty) Ltd t/a Megapak v Commissioner for Conciliation, Mediation & Arbitration and Others (C 512/2018) [2021] ZALCCT 99 (LC), the court found that a dismissal of the employee whose conduct did not meet the requirements of provocation was substantially fair given the assault that occurred. It was further discussed in this case that all factors need to be considered when dealing with a matter where provocation is raised as a defence.
Conclusion:
Given that provocation is a sui generis defence, it should be considered on a case-by-case basis. The defence of provocation does not automatically excuse an employee in the workplace from a charge of “fighting whilst on duty” or “assaulting a fellow employee[Ev1] [ME2] ”, neither does it reduce the sanction of dismissal. The onus, however, remains on the employee to prove that s/he was in fact provoked in order to retaliate in the form of the misconduct which s/he is being charged with. The employer also bears a responsibility to investigate and determine whether there was provocation, the extent thereof and the circumstances surrounding the offence itself.
Contact Invictus for guidance and assistance in navigating workplace violence & provocation. Get in touch with our office at 086 173 7263 or email us at admin@invictusgroup.co.za
