Labour Law in South Africa: Derivative Misconduct

Labour and Employment Law in South Africa can easily be considered as some of the most progressive and liberal in the world, with recent additions seeing a ban in specific behaviour towards fellow employees that include passive-aggressiveness, gossip, and eye-rolling. Today, the topic is derivative misconduct – an essential part of workplace conduct that could easily be connected to these recent law changes, especially now that South Africans are slowly but surely returning to the workplace.

What is Derivative Misconduct?

Derivative misconduct refers to a specific situation where an employee has knowledge and/or information about misconduct towards their employer and does not disclose this knowledge and/or information to their employer. By failing to disclose the knowledge of the specific misconduct, the employee breaches their duty of faith that is owed to their employer. In turn, their employer may discipline them based on the grounds of derivative misconduct. Simply put, if an employee is aware of any wrongdoing towards their employer, they must come forth and disclose their knowledge to avoid any disciplinary actions.

New Workplace “Code of Conduct”

In an effort to reduce workplace harassment, South Africa’s brand-new code of conduct stipulates clear and comprehensive advice and guidelines for both employer and employee, putting the focus on unfair behaviour between colleagues, subordinates, and superiors. The Department of Employment states that the newly instated Code of Conduct identifies the necessary steps for employers to reduce and eliminate workplace harassment by developing and implementing specific policies to create a workplace that is free from harassment – where employer and employee will respect each other’s dignity, privacy, and right to equality.

How Does the New Code of Conduct Tie into Derivative Misconduct?

Dependent on how specific policies are developed, implemented, and enforced in your workplace, it is crucial to be aware of any misconduct within your workplace, especially if it is directed at your employer. Derivative misconduct can lead to disciplinary action against an employee, which can involve legal action as well. Therefore, it is pivotal to know your rights in the workplace and follow the implemented policies to avoid any legal action against you.

If you find yourself in need of a legal expert, Allardyce & Partners Attorneys is your first choice in South Africa. We offer a “no win, no fee” contingency that is tied to our terms and conditions for employees that earn more than R20 000 monthly. Therefore, you will have the peace of mind that we will bring our best when legally representing you in such matters. Contact us today on 011 234 2125 or email us at for details on how we can assist you.

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