Labour Law Newsflash: Derivative Misconduct case law

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National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others [2019] ZACC 25

This matter was heard in the Constitutional Court and dealt with derivative misconduct. You can access the full case and judgement here.

This article seeks to highlight the most important principles as set out in this lengthy and detailed judgment and then unpack the principles therein.

The strike

On the day the protected strike started, violence erupted. An interdict obtained to stop it did not help. The violence escalated over the following month.

An employer is not precluded from fairly dismissing an employee in terms of the LRA for a reason related to the employee’s misconduct during a strike. Dunlop’s dismissal of the employees was based on their alleged misconduct during the strike.

In adjudicating the unfair dismissal dispute, the arbitrator distinguished between three categories of employees: (a) those that were positively identified as committing violence; (b) those that were identified as present when violence took place but who did not physically participate; and (c) those that were not positively and individually identified as being present when violence was being engaged in. He found the dismissals were procedurally and substantively fair in respect of the dismissal of the first two categories of employees. The dismissal of the last category (c), however, was held to be substantively unfair and he ordered their reinstatement.

Dunlop successfully took the award in respect of the third category of employees on review to the Labour Court where it was set aside. NUMSA appealed to the Labour Appeal Court, but the appeal was dismissed by the majority in that Court.  NUMSA sought leave to appeal against that dismissal on behalf of the third category of employees, those not positively and individually identified as present during the violence (applicants).

Derivative Misconduct

Dunlop relied on actual misconduct, derivative misconduct and common purpose in its justification for the dismissals. The court then unpacked the development of the principle of derivative misconduct.

Grogan summarises derivative misconduct as: —
“The term given to an employee’s refusal to divulge information that might help his or her employer to identify the perpetrator … of misconduct – it is termed ‘derivative’ because the employee guilty of that form of misconduct is taken to task, not for involvement in the primary misconduct, but for refusing to assist the employer in its quest to apprehend and discipline the perpetrator(s) of the original offence. Trust thus forms the foundation of the relationship between employer and employeeDerivative misconduct is founded on this notion. There is no general obligation on employees to share information about their colleagues with their employers, but at the very least employees must inform on their colleagues when they know that those colleagues are stealing from their employer, or that they have been guilty of misconduct which warrants disciplinary action.” (Emphasis added.)

The Court found that neither our criminal law nor our civil law generally requires us to be our neighbour’s keeper. It went further to state that to expect employees to be their employer’s keeper in the context of a strike where worker solidarity plays an important role in the power play between worker and employer would be asking too much without some reciprocal obligation on an employer’s part.

Conclusion

To impose a unilateral obligation on an employee to disclose information to her employer about the participation of a co-employee in misconduct in a protected strike would be akin to imposing a fiduciary duty on the employee. Dunlop’s reciprocal duty of good faith required, at the very least, that employees’ safety should have been guaranteed before expecting them to come forward and disclose information or exonerate themselves. That was not sufficiently done. This was one of the primary reasons why the appeal succeeded.

The Court found that for the employees in this context to be found to be culpable, it must be a probable inference that each of the employees was (a) present at an instance during the strike where violence was committed; (b) would have been able to identify those who committed the violent acts; (c) would have known that Dunlop needed that information from them; (d) with possession of that knowledge, failed to disclose the information to Dunlop; and (e) did not disclose the information because they knew they were guilty and not for any other innocent reason. To dismiss all the category (c) employees in the absence of individual identification would not be justified. The inferential reasoning failed at the first step.

What this means for you

The Constitutional Court has clearly indicated that whilst you may take action against people who are identified as having committed violent action during a strike as well as people who have been identified as being part of a group during the course of the time of commission of violence, the Court clearly has indicated that where parties have not been identified as having been part of a group and particularly having been part of or in the group when violence was committed, action cannot be taken against these individuals for what may be viewed by the company as a lack of disclosure on their part.

An interesting judgment and something to bear in mind in the lead up to any strike action and strategies on how to set up your strike plans.

At Global Business Solutions we have extensive experience in managing strikes from small to large scale situations. Contact us to discuss how we can assist with the preparation of a plan of action in dealing with possible strikes, alternatively for urgent interventions in managing strikes or for us to provide training of your team in how to deal with these type of situations and the various nuances they pose.

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