Sonja Vorster
More often the charge of ‘derivative misconduct’ is used by companies when charging employees in disciplinary hearings. What is it? What does it mean?
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Derivative misconduct can be described in general as a form of misconduct when an employee fails to offer reasonable assistance in identifying those employees who are offending and who are aware of an act of misconduct but choose to remain silent makes themselves guilty of a derivative violation of the trust relationship.
The concept of derivative misconduct was clarified by the Labour Court in the judgment of Dunlop (Pty) Ltd & Another v NUMSA (D345/14) [2016] ZALCD 9 ( May 11, 2016).
The dispute in the Dunlop case arose after the employer (“Dunlop”) dismissed 107 employees for acts of serious misconduct. The Commission for Conciliation, Mediation and Arbitration (CCMA) found that the dismissal of 42 of the employees was procedurally and substantively fair.
The remaining 65 employees, who were all charged with derivative misconduct, were however found to have been unfairly dismissed and were reinstated. The 42 employees who were dismissed were charged with and found guilty of, amongst other things, derivative misconduct.
Dunlop accordingly approached the Labour Court to review and set aside that portion of the award, which ordered the reinstatement of the 65 employees. The court found that the CCMA Commissioner had incorrectly applied the legal principles in relation to the issue of derivative misconduct.
The Commissioner had failed to draw an inference that all employees were present and, consequently, failed to enquire into whether the failure of the employees to come forward to disclose the names of the perpetrators and/or to exonerate themselves constituted derivative misconduct.
In regard to the inference, the court found as follows:-
“[76] I am satisfied that the only reasonable and plausible inference that can be drawn from the evidence is that the respondent employees were present during the strike and accordingly during the misconduct.If they weren’t present or had no information regarding the perpetrators they would have said so. They, despite the opportunities afforded to them, did not.”
The court found that the employees’ decision to remain silent in the face of evidence adduced by Dunlop was a breach of the trust relationship. The court pointed out that it is reasonable for an employer to expect that strikes should be conducted peacefully and in an orderly fashion, particularly where picketing agreements have been concluded.
As a consequence, the court found that the Commissioner had misdirected himself and reviewed and set aside the order, replacing it with one where the dismissal of the 65 employees was found to be both substantively and procedurally fair.
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