The principle of derivative misconduct: employer’s final recourse against employees who associate themselves with proven acts of misconduct committed by their colleagues.

It often happens that an employer is not in a position to obtain first-hand information about the acts of misconduct committed by certain employees at the workplace and that such information is within the employees’ exclusive knowledge.

In order to bring the guilty employees to book, the employer will need some assistance from the employees with first-hand knowledge of the acts of misconduct that had occurred. The difficulty that an employer often encounters is the unwillingness on the part of the employees to come forth with such information. The principle of derivative misconduct entitles the employer to resort to dismissals against such reluctant employees.

The principle of derivative misconduct was succinctly expounded by the Labour Court in the matter of Dunlop Mixing and Technical Services (Pty) Ltd & Others (hereinafter “Dunlop”) v National Union of Metalworkers of South Africa and Others (hereinafter “NUMSA”) (D345/14) (2016) ZALCD 9 (11 May 2016). In this matter Dunlop employees were all members of NUMSA. In August 2012, they embarked on a protected strike in furtherance of a wage dispute. The strike was characterised by violence.

Dunlop responded by lodging an application for an interdict at the Labour Court, in an attempt to halt the violence. The Labour Court granted the interdict order, which was directed at prohibited the striking employees from engaging in violence and entering Dunlop’s premises during the strike. However some employees disregarded the court order and continued with their violent acts. As a result of this, Dunlop dismissed 107 employees, of which 29 were dismissed for engaging in violence (herein after “direct misconduct”) and the remaining 78 were dismissed for derivative misconduct.

Aggrieved by the dismissals, the employees who were represented by NUMSA, referred the matter to the CCMA, where they challenged the fairness of their dismissals. Dunlop vehemently defended the matter, as it was adamant that the dismissals were fair. At the arbitration, Dunlop justified both direct misconduct and derivative misconduct. Dunlop adduced a video and photograph showing the volatile occurrence of violence and some of the employees were identifiable. It also led 9 witnesses who testified that the employees disregarded the call to cease violence or if not involve in violence, to come forward to assist Dunlop to identify the perpetrators or exonerate themselves.

The CCMA was satisfied that there was an overwhelming evidence adduced by Dunlop which NUSMA failed to challenge. The CCMA ruled that the dismissals for employees charged with direct misconduct was both procedurally and substantively fair. However, the Dismissals for most employees charged for derivative misconduct were ruled to be both procedural and substantively unfair. The CCMA held that Dunlop had failed to prove on a balance of probabilities that the employees were present during the strike and that they knew who the perpetrators were. Finally, Dunlop was ordered to reinstate the employees.

Dunlop was discontent with CCMA’s ruling, therefore it lodged an application for review at the Labour Court in terms of section 145 of the Labour Relations Act (LRA), No. 66 of 1995. In this application, Dunlop only challenged the CCMA’s ruling in respect of the dismissals for derivative misconduct, arguing that these dismissals were fair and that the CCMA failed to consider the material evidence adduced during the arbitration. Dunlop confined its argument on the breach of duty of trust that it believed was committed by the employees. Dunlop strongly argued that by failing to come forward to identify the perpetrators or exonerate themselves, meant that an inference could be drawn that the employees were present during the strike and that they had knowledge of the identities of the perpetrators.

The Labour Court heavily relied on the Labour Appeal Court’s ruling in Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC), where it was held that a worker in a group which includes the perpetrator may be under a duty to assist management in bringing the guilty to book. It was also held that where an employee has information on the perpetrator’s misconduct, but fails to come forward to share such information with the employer, this amounts to a misconduct itself, which may warrants a dismissal.

The Labour Court was critical of the CCMA, for failing to consider the nature and the extent of the misconduct in question and the evidence adduced by Dunlop. The Court held that the CCMA also disregarded the seriousness of the misconduct, which amounted to more than just a simple failure on the part of the employees to assist the employer to identify the perpetrators. The Court stressed that this failure amounted to a breach of trust relationship.

The Court held that the CCMA failed to rule on the issue raised by Dunlop that by remaining silent an inference could be drawn against the employees that they were present during the strike and that they had knowledge of the identities of the perpetrators. The Labour court held that the right to silence is something that only finds application in criminal law and not civil law. The Court was satisfied that the dismissals for derivative misconduct were both procedurally and substantively fair.

The ruling of the Labour Court has significantly raised the standard of duty of good faith that employees owe to the employer. Therefore, employees should meet this standard by being co-operative and responsive when an employer is investigating acts of misconduct committed by their colleagues.

By Jeffrey Maluleke
jeffrey@dyason.co.za