FAWU & others v Amalgamated Beverages Industries Ltd (1994) 15 ILJ 1057 (LAC)
Where there is an assault by a group of employees and the perpetrators are not individually identified, dismissals may be justified when the only inference is that the employees were all present and either participated or supported the assault.
Employees were dismissed for assault, although the identity of those who participated directly was no known. The Industrial Court upheld the dismissals on the basis that they shared a "common purpose". The Labour Appeal Court held that the employer's case was based on inference alone because there was no direct evidence. However the inference was based on the facts that all the dismissed employees were present when the assault took place and that all those present either participated in the assault or lent it their support.
Extract from the judgment:
The extent to which a party's failure to give evidence may properly give rise to an inference against him has received considerable attention from the courts. What emerges from the decided cases is that his failure to do so cannot by itself constitute proof of what is alleged against him. Nevertheless the evidence against him, though not conclusive, may be such that an explanation would be expected if one was available. In such cases his failure to provide an explanation may be placed in the balance against him...In the field of industrial relations, it may be that policy considerations require more of an employee than that he merely remain passive in circumstances like the present, and that his failure to assist in an investigation of this sort may in itself justify disciplinary action.