Where employees possess information that would enable an employer to identify wrongdoers and those employees fail to come forward, they are guilty of “derivative misconduct”.
This is according to Hugo Pienaar and Nomlayo Mabhena of legal firm Cliffe Dekker Hofmeyr, who explained that such conduct violates the trust upon which the employment relationship is founded.
“This concept was confirmed in a recent case where the Labour Court held that an employee bound implicitly by a duty of good faith towards the employer breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined,” said Cliffe Dekker Hofmeyr.
“The court further held, that on general principle, a breach of the duty of good faith can justify dismissal.”
According to the attorneys, in recent times derivative misconduct has commonly been applied in the context of strikes where there is a breach of picketing rules and an employer wishes to take action against the employees who fail to report breaches by their fellow employees of the picketing rules.
The question that then arises is how an employer proceeds with an inquiry involving a large number of employees as it would be impractical to hold, for example, thirty individual inquiries.
As a result “collective inquiries” have become increasingly common, they said.
“The rationale for collective disciplinary enquiries is based on two principles, said Cliffe Dekker Hofmeyr.
“Firstly, that employees have acted collectively and associated themselves with an act of misconduct and therefore, they are charged collectively.
“It is sufficient that a particular employee merely witnessed the unlawful conduct.
“Secondly, if the employee witnesses the conduct but does not participate in the intimidation, and fails to disclose this information to the employer, he/she may in addition be charged in the collective inquiry, based on derivative misconduct.”