Derivative misconduct is derived from the common law duty of Good Faith that the employee has towards their employer. If wrongdoing has been perpetrated by one or more employees against the business of the employer and an employee/employees that did not commit the offence have information about the offense and, importantly, information about the person that perpetrated the offence and that employee fails to disclose that information to the employer, such an employee is said to have made themselves guilty of Derivative Misconduct. This concept is not described or defined in legislation. It is very close to the doctrine of common purpose found in criminal law. On the face of it, this concept appears easy enough to apply and the test to establish guilt appears to be one that could be arrived at without too much difficulty.
The case of NUMSA on behalf of Magezi and others v Dunlop Mixing and Technical Services (PTY) Limited and Others, which took seven years to conclude this matter with at least four tribunals, excluding the disciplinary hearing in the company, each examining the same set of facts, proves exactly how difficult and illusive it may be to arrive at a conclusion.
The National Union of Metal Workers South Africa (NUMSA) went on a protected strike in August 2012. The strike turned violent with many strikers involved in misconduct. Some 65 employees including Nganezi were expected to effectively rat on the employees that had been involved in violence and misconduct to the employer. These employees did not do so. The employer charged them with Derivative Misconduct on these facts and dismissed them. The CCMA arbitration reinstated them on the back of a finding that the dismissal was unfair. The matter went to the Labour Court and the Labour Appeal Court, and both these institutions ruled in favour of the employer that concluding that the dismissal was fair. Things took a turn in favour of Numsa in 2019 when the Constitutional Court decided that the CCMA was indeed correct and that the dismissal was unfair.
The key consideration was that the employer did not create conditions that would have guaranteed the safety of the employees that the employer expected to rat on their fellow employees. When we discussed this case at the International Labour and Employment Relations Association (ILERA) in Durham at the Durham University Business School, I submitted that in essence, the Constitutional Court in South Africa has closed the lid on Derivative Misconduct with this condition. Everyone agreed with me that no employer in the world, even if such an employer was the most powerful army in the world, could guarantee the safety of one employee, let alone 65! This was not the only reason for the rejection of the decision of the LC as upheld in the LAC, but it was, in my view, the heavy blow. Other considerations included the fact that imposing such a duty would undermine the rights of vulnerable employees to strike. I emphasise the safety aspects because our law accepts that for my own safety and survival, I can kill another to save my life. It should be tolerable therefore, that, if it means I must keep quiet to save my life, I should be allowed to so do, without taking away my right to earn a living. The Constitutional Court has closed the matter.
