Derivative misconduct occurs when an employee is linked to or implicated in another employee’s misconduct, even if they were not directly involved in the misconduct themselves. It includes situations where an employee was aware of the misconduct and failed to report it, actively assisted in it, or covered it up.
From a practical perspective, the concept was created by our courts to overcome difficulties when identifying all the guilty parties involved in group misconduct. It refers to an employee’s refusal to disclose information that may assist their employer in identifying the perpetrator of misconduct.
Employee Accountability in Group Offenses
It is termed “derivative” because the employee in question would be reprimanded for refusing to assist the employer in apprehending and disciplining the culprit or culprits of the original offence and not for being involved in the primary misconduct.
Case Study
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, the Constitutional Court established the test for Derivative Misconduct and what an employer must prove to justify dismissing an employee for Derivative Misconduct.
The matter involved members of the National Union of Metal Workers who were engaged in a protected strike, which turned violent and damaged property. Dunlop dismissed the workers involved in the strike. When it became violent, 65 workers were not positively and individually identified as being present when the violence was committed but were dismissed for derivative misconduct.
Three groups of employees were identified at Arbitration:
- Those who were positively identified as committing violence;
- Those who 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, the latter category, are dealt with in the content below.
Constitutional Court Findings
The matter made its way to the Constitutional Court, which held that 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, they would have been able to identify those who committed the misconduct, they would have known that their employer needed the information from them, they failed to disclose the information to their employer and the reason why they did not disclose the information, was because they knew that the employees were guilty.
The Court held, “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 further elaborated that our law does not imply fiduciary duties in all employment relationships. The duty generally arising in an employment relationship is a reciprocal contractual duty of good faith. This does not impose an obligation on any employee to disclose information about their fellow employees’ misconduct to their employer in the absence of any reciprocal obligation by an employer itself to give something to the employees in return (such as in the Dunlop matter, guaranteeing their safety).
Reciprocal Duty of Good Faith
The contractual duty of good faith applicable to all employees is reciprocal, and consequently, employees who are called to identify those committing misconduct must be offered something in return.
Subsequently, the Court confirmed that the employees in question did not have a duty to disclose information and were not guilty of Derivative Misconduct. The Labour Court and Labour Appeal Court orders were set aside, and the Arbitration ruling of substantively unfair dismissal and an order for reinstatement of the Applicants stood.
Employers will need to be more vigilant in monitoring and identifying perpetrators of workplace misconduct. They are required to demonstrate by direct or compelling circumstantial evidence that the employee is/are directly or indirectly associated with or participated in the misconduct in question.
Please contact our offices if you have any questions or require assistance regarding Derivative Misconduct or any other subject matter in the workplace.
