Article 64/2022

What is the content of the common purpose doctrine in the misconduct environment?

_____________________________________

The following principles can be extracted from Chauke v Leeson Motors (1998) 19 ILJ 144 (LAC); FAWU v Amalgamated Beverage Industries (1994) 15 ILJ 1057 (LAC); SAMWU v City of Cape Town (2011) 22 SALLR 145 (LC):

  • the doctrine of common purpose is applicable where the misconduct is proved but the actual perpetrators are not identified
  • when applying the doctrine of common purpose, the employer knows that there are innocent employees, but there is no evidence as to the actual perpetrator(s)
  • there are two kinds of justification for the dismissal of such innocent employees, namely:
  • an operational justification, where it is necessary to save the ‘life of the enterprise’ or
  • where there is no operational justification but sufficient grounds exist for inferring that the entire group is responsible or involved in the misconduct – a collective motive is therefore inferred from the action of the entire group and the onus is on the employees in the group to absolve themselves

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).