Abstract
This study examines common purpose in its association form within the context of labour law. Particularly its application in dismissals for strike violence in which employers rely on common purpose to establish an employee's participation or involvement in the violence and to justify their dismissal. This study aims to analyse the precise definition of an act of association, which is essential to establish association and, consequently, direct common purpose liability. This study concludes, after reviewing recent case law on the subject, that South African law lacks explicit definitions of association and act of association. Association is frequently used in labour law to infer participation or involvement in misconduct. However, the lack of a precise definition of association increases the risk of innocent employees being held liable under common purpose. This study thus recommends a partial reform of the association form of common purpose.
This study argues that a distinction should be made between those who carry out all elements of the misconduct (primary perpetrators), those who encourage or aid the commission of the misconduct and further the common purpose (primary conspirators), and those who only encourage or celebrate the misconduct without furthering the common purpose or aiding the commission of the misconduct (secondary conspirators). The primary perpetrators and primary conspirators should be held directly liable and punished equally. Whereas secondary conspirators should be subject to derivative liability and, in some instances, lenient punishment that reflects proportionality between the wrongdoing and the sanction. Proof of association without proof of assistance or involvement should only imply secondary conspiracy.
The duty of good faith in the employment relationship requires employees to assist their employers in identifying individuals responsible for strike violence, or at the very least, exonerate themselves. However, this duty is reciprocal, thus prior to asking an employee to assist with strike misconduct investigations, the employer must assure their safety. The employment contract can address the issue of cooperation in exchange for protection. Such a clause can further provide that employees who unreasonably refuse to cooperate after reasonable protection has been offered may be dismissed.