In National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty). Limited and Others it was decided that employees can’t be expected to be their employer’s keeper.
In the matter of National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others  ZACC 25, the Constitutional Court solidified what the test for “derivative misconduct” entails and what an employer, who wants to rely on such conduct, must prove to justify dismissal.
The concept of “derivative misconduct” was created by our courts to overcome difficulties when identifying all the guilty parties involved in group misconduct and refers to an employee’s refusal to divulge information that might help their employer identify the perpetrator of misconduct. It is termed “derivative” because the employee in question would be reprimanded, not for being involved 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.
Briefly, the matter involved members of the National Union of Metal Workers that were engaged in a weeks-long protected strike that turned violent and resulted in damage to property. Dunlop dismissed the workers who were involved in the strike. Sixty-five of these workers were not positively and individually identified as being present when the violence was committed but were dismissed nonetheless for derivative misconduct.
At arbitration, three groups of employees were identified:
- Those that were positively identified as committing violence;
- Those that were identified as present when the violence took place, but who did not participate; and
- Those who could not be identified as being present when the violence took place.
In the present matter, only the dismissal of the third group was dealt with.
The Constitutional Court found that in order to prove derivative misconduct, it must be a probable inference that each of the employees:
- Was present at an instance where the misconduct was committed;
- Would have been able to identify those who committed the misconduct;
- Would have known that their employer needed the information from them;
- Failed to disclose the information to their employer; and
- Did not disclose the information because they knew that they were guilty and not for any other innocent reason.
In its adjudication, the Constitutional Court held that the duty of good faith does not imply the imposition of a unilateral fiduciary obligation on employees to disclose known information of misconduct by their co- employees to their employer.
The Court reasoned that the duty of good faith is a reciprocal duty. In situations where employers seek to impose duties on employees to disclose information about their striking colleagues, employers must, at the very least, guarantee the disclosing employees’ safety. In this instance, the Court was of the view that the employees’ safety was not sufficiently guaranteed. Consequentially, the court confirmed that the employees did not have a duty to disclose information and were not guilty of derivative misconduct.
What does this mean for you?
Whilst employers may take action against employees who are identified as having committed violent action during a strike (as well as employees who have been identified as being part of a group during the course of the time of commission of violence), the Constitutional Court has clearly 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 individuals for what may be viewed by the company as a lack of disclosure on their part.
By Zinhle Mavuso (Paralegal)
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