What the Constitutional Court Says About Derivative Misconduct

Grant Wilkinson, Executive: Global Business Solutions

If an employee refuses to divulge information which might help his or her employer to identify the culprit of misconduct, said employee is guilty of ‘derivative misconduct’. However, to impose a one-sided obligation on an employee, to disclose information to her employer about the participation of a co-employee in misconduct during a protected strike, would be like imposing a fiduciary duty on the employee. (If an employee owes an employer a ‘fiduciary duty’ the former is obliged to give the latter the highest degree of care and devotion.)

In the case of 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 the Constitutional Court handed down a key judgement about misconduct during strikes that could be of use to you, if your company, should you face a similar situation.

Facts of the case

A strike had taken place at the employer. On the day the protected strike started, violence erupted. The interdict that was obtained to stop it did not help. The violence escalated over the following month. The employees involved in the strike violence were dismissed.

An employer is not prevented from fairly dismissing an employee for a reason related to the employee’s misconduct during a strike. [This is in terms of the Labour Relations Act (LRA)]. Dunlop’s dismissal of the employees was based on their alleged misconduct during the strike.

In deciding 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 in it; 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, however, was held to be substantively unfair. Thus, he ordered their reinstatement.

Dunlop successfully took the award, regarding the third category of employees, on review to the Labour Court. In this forum, it was set aside. NUMSA appealed to the Labour Appeal Court but the appeal was dismissed by the majority. NUMSA sought leave to appeal in the Constitutional Court (CC) - against that dismissal on behalf of the third category of employees.

The CC found that neither South African criminal nor civil law generally require one to be another’s ‘neighbour’s keeper’. In other words, fellow employees do not have a duty to watch other the other’s behaviour. 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.

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 probably that each of the employees:

• Was present at an instance during the strike where violence was committed;
• Would have been able to identify those who committed the violent acts;
• Would have known that Dunlop needed that information from them;
• With possession of that knowledge, failed to disclose the information to Dunlop; and
• 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.
This judgement shows that while you may take action against people who are identified as having committed violent action during a strike, in addition to people who have been identified as being part of a group during the course of the time of commission of violence, where parties have not been identified as having been part of a group and as particularly having been part of (or in the group when violence was committed) action cannot be taken by the company for (what may be viewed as) a lack of disclosure on their part against these individuals.

This judgement shows that when dealing with dismissals in a strike situation, one must not adopt a blanket approach. It’s vital to consider each circumstance individually.