Derivative misconduct occurs when an employer is faced with a situation where misconduct has occurred (often in a collective context) but the employer can’t identify exactly who the perpetrators of the misconduct are. At the same time, the employer is sure that the employees know who the perpetrators are.

Derivative misconduct requires that the employees come forward and identify the perpetrators for the employer so that he can take steps to protect his business. The duty to tell arises out of the general duty of good faith that employees owe their employer simply by virtue of the existence of the employment contract between them. All employees have a fiduciary duty to act in the best interests of their employer. If the employees do not come forward to identify the perpetrators of the misconduct then they themselves are guilty of misconduct. This is known as derived, or derivative, misconduct.

Even if the employees do not have actual knowledge of who the perpetrators are but could have found out by the exercise of due diligence, they may be held guilty for acting negligently in failing to obtain the necessary information.
It is not necessary that the employer must have specifically asked the employees to provide the information. The duty to disclose is triggered automatically when the employee knows or ought reasonably to know who the perpetrators are and fails to volunteer this information to the employer. Where a specific request for information has been made, and the employee ignores it, culpability is increased.  It is also more blameworthy for a senior employee to refuse to provide information regarding a junior employee who has committed misconduct.

It used to be understood that the undisclosed information must be actual knowledge held by the employee – and not imputed or constructive knowledge. However, a recent case decided in the Johannesburg labour court has suggested otherwise.

The misconduct in this case took the form of extreme violence, intimidation and harassment during the course of a strike. The strike was described as laying the employer to siege: the striking employees barricaded the roads to the employer’s premises, armed themselves and attacked vehicles driving to and from the premises.

There were three groups of employees who were dismissed. The first group were employees who were actually identified participating in the acts of misconduct. The second group were not specifically identified as perpetrators but they were identified as having been in the vicinity of those who were committing the misconduct.

The third group of employees could not be identified as perpetrating the misconduct nor could they be identified as having been in the vicinity of the perpetrators. The employer argued that it could be inferred from the circumstances of the strike that all the employees were striking and that they were all present when the acts of misconduct took place. The employees refused to volunteer information concerning the misconduct, choosing instead to remain silent. They were dismissed for their failure to come forward either to exonerate themselves by asserting that they were not present at the relevant time and/or could not identify the perpetrators; or to identify the perpetrators. They simply remained silent in the face of their employer’s requests for information to help it bring the perpetrators of the misconduct to book.

The dismissals of the first two groups of employees were not challenged. However, it was argued that the dismissal of the third group of employees for derivative misconduct was unfair because there had been no direct evidence suggesting that they were present at the time the misconduct was committed or that they knew who the perpetrators were.

The court agreed that it could be inferred from the circumstances of the strike that all the employees were striking and that they had all been present at the time the misconduct was committed. The court had regard to oral evidence, photographic evidence and video evidence in reaching this conclusion. It is important to note that even in court the employees did not deny that they were present and/or knew who the perpetrators were. They simply argued that since there was no evidence linking them with the misconduct they had no duty to come forward with information.

Employees have no general right to remain silent, and nor do they have the right to be presumed innocent until proven guilty. Those constitutional rights pertain to the criminal context where no adverse inference can be drawn against an accused who declines to testify or offer a defence. The right to remain silent and to be presumed innocent have no application in the employment context.

Accordingly, the court found that the employees did make themselves guilty of derivative misconduct when they chose to remain silent in the face of their employer’s requests to them to provide information. This was regarded as sufficiently serious misconduct as to warrant the ultimate sanction, dismissal, since it went to the heart of the trust relationship that should exists between an employer and his employees. The employees’ dismissals were thus found to be fair.

This year, it is the 30th anniversary of the Annual Labour Law Conference, which will takes place at Emperors Palace in Kempton Park from 2-3 August 2017. The programme is an especially exciting one, and attendees expect to hear presentations on a wide range of labour related topics including a current update on the law pertaining to unfair dismissals.

With the theme of “Past Lessons, Future Challenges: 30 years on” this year’s ALLC is jointly organised by the Institute for Development and Labour Law at the University of Cape Town, the Centre for Applied Legal Studies at the University of the Witwatersrand and the University of KwaZulu-Natal. It is facilitated by The Conference Company which succeeded long-time conference coordinator LexisNexis South Africa. The gathering is the largest of its kind in Southern Africa attracting some 800 professionals from around the country annually. For bookings or more information on the 30th Annual Labour Law Conference, visit www.annuallabourlawconference.co.za

Written by Nicci Whitear, LLM, Senior lecturer, UKZN; CCMA Commissioner and consultant attorney at Austen Smith attorneys, PMB