This article was written by Anè Potgieter, an Associate  at Norton Rose Fulbright South Africa

A striking employee can be guilty of derivative misconduct and fairly dismissed if the employee fails to come forward and assist the employer to identify the perpetrators of misconduct during a strike. Derivative misconduct includes the failure to disclose information within the employee’s knowledge about the employer’s business interests being improperly undermined as well as the employee’s failure to take the opportunity to be exonerated by providing some explanation to the employer.

The duty of good faith towards the employer and the essentials of trust and confidence between an employee and employer demand that an employee do more than simply remain silent – especially when the employer has repeatedly requested information regarding the perpetrators of the misconduct and the employee is well aware of this.

In the matter of Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of South Africa (“NUMSA”) obo Khanylie, Nganezi and Others (D345/14) [2016] ZALCD 9 members of NUMSA embarked on a strike at their employer’s premises during August 2012. During the course of the strike the striking employees became involved in serious acts of misconduct, resulting in a dangerously volatile situation which was tantamount to placing the employer’s premises under siege. The events included violent confrontations between employees, supervisors, managers and union representatives.  The striking employees also ignored an interdict granted by the Court which restricted the striking employees from being within 50 meters of the access road to the employer’s premises and which interdicted the unlawful conduct.

Following the strike, the employer dismissed 107 employees. Some were dismissed for specific misconduct, some for derivative misconduct and others for both.  The dismissed employees referred disputes to the CCMA and at the conclusion of the arbitration proceedings the commissioner found that whilst 42 employees were fairly dismissed, 65 employees had been unfairly dismissed for derivative misconduct and the commissioner ordered the reinstatement of those employees.  The commissioner found that the employer failed to prove that the 65 employees were present when the acts of violence, intimidation and harassment were committed and that the employees were therefore obliged to provide the employer with the names of the actual perpetrators.

On review, the employer argued that the 65 employees were guilty of derivative misconduct because they breached the trust relationship when they failed to come forward to either exonerate themselves (by explaining that they were not present when he actual misconduct was committed) or by identifying the perpetrators.

The issue, according to the Labour Court, was whether the inference could be drawn that the 65 employees were present during the strike and if so, whether that placed an obligation on them to provide an explanation and whether their deliberate refusal to do so strikes at the heart of the employment relationship.

The Court considered the case of Chauke & Others v Lee Service Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) and decided that the question of derivative misconduct is not confined to proving on a balance of probabilities that the employees knew who the perpetrators were and failed to come forward and disclose this information.  The question is whether the evidence adduced by the employer is sufficient to create the inference that the employees were present during the misconduct and that in turn placed a burden on them consistent with the essential trust and confidence of an employment relationship to come forward with an explanation and to exonerate themselves or identify the perpetrators of the misconduct.

It was never suggested by the 65 employees that they were not present when the misconduct was committed during the strike. The Court concluded that the only reasonable and plausible inference was that the 65 employees were present during the strike and accordingly during the misconduct.  The Court found that the employees could have come forward and exonerated themselves by saying that they weren’t present or had no information regarding the perpetrators.  The employees did not do this.  As a result, their failure to come forward and provide an explanation constituted derivative misconduct.

When faced with a strike, employers must to ensure that they are able to identify the employees who were striking and who were present when any misconduct was committed. This will eliminate the need to infer whether employees were present or not.  This is an onerous task but employers can make use of security surveillance and other cameras and can also enlist the assistance of security personnel and managers who know the employees and who can easily identify them.  When misconduct is committed during a strike, employers should issue a notice to its employees calling for information regarding specific misconduct or for an explanation regarding their own whereabouts. It is also recommended that employers make it clear in this notice that a failure to come forward with the required information may lead to disciplinary action.

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