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MISCONDUCT - ASSAULT OR INDECENT ASSAULT

Assault is an unlawful and intentional attack on the body of another person. In other words, the attacker causes or intended to cause physical harm to another.


Indecent assault involves similar, but the intention is to commit an indecent attack on the person – an attack of a sexual nature, vulgar speech, improper suggestions, or other crude behaviour. There should be a no tolerance policy in place for this form of harassment as prescribed in the Code of Good Practice – Prevention and Elimination of Harassment and Discrimination in the workplace.


Such conduct might also attract a charge of sexual harassment as the human dignity of the assaulted is compromised by the perpetrator.

An assault at the workplace has an immediate impact on the employment trust relationship and the employer’s business.


What to look for?

The attack must have been unlawful, uninvited, and intentional. This charge would include horseplay, fighting on premises, there may be the use of a dangerous weapon, but the use of a weapon is not an essential element.


Firstly, determine the nature of the offence. What sort of attack was it, what caused the attack, was there provocation or coercion or self-defence? Was there intent or lack of intent?

Determine the seriousness of any injuries, taking photographs wherever possible. Try to find the weapon used if any. If you find a weapon, take possession of it and lock it away. What is the level of seniority of the offender and the victim? Examine the disciplinary records of both parties involved.


Has the victim also been the victim in any previous assault cases? If so, it might show that they provoke people. Take statements from witnesses and prepare the charge sheet.


What must the investigator prove at the disciplinary enquiry?

Present whatever evidence has been gathered to prove the assault, to prove that it was unlawful, and to prove that the attacker intended to hurt the victim.


Present any evidence from both previous disciplinary records. Call witnesses and allow them to testify. Produce the weapon used in the assault. Show that assault on the employer’s premises is unacceptable and cannot be tolerated and show that the continuance of the employment relationship has now been brought into serious question, in terms of the element of trust and the preservation of peace and harmony in the workplace.


Assaults by employees on their co-workers are regarded in a particularly serious light, as the intention to repudiate the employer’s authority at the workplace can be inferred.

Provocation negates unlawfulness if accused employees are subject to taunts that caused them momentarily to lose control.


Assault is generally accepted as a valid ground to dismiss the assailant. As in criminal law, the offense of assault in the workplace has three elements: the commission of the prohibited conduct itself, knowledge of the wrongfulness, and unlawfulness. Like verbal abuse, assault can take many forms. The legal requirements for the offence are the application of physical force, however slight, to the body of the complainant, or the threat that such force will be applied. Assault does not require the actual use of force by the assailant. A threat of force will also suffice. Depending on the circumstances, provocation may serve to mitigate the gravity of an assault.


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