Derivative Misconduct if Perpetrators Can’t Be Identified

Employers often face situations where they are unable to identify perpetrators of misconduct, but where they need to take disciplinary action. A common example is where strikers commit acts of violence and intimidation. Another example is where employers in the retail space, such as supermarkets, experience stock losses (shrinkage) but do not know which employees are responsible for it. To address this situation, employers may rely on derivative misconduct.

This involves a situation where employees remain silent about misconduct by other employees, despite being aware of it. It is based on employees having a duty to report misconduct by their colleagues to their employer, a breach of which is itself misconduct.

While derivative misconduct may appear to be a convenient way to dismiss the entire workforce with minimal evidence, the courts have made it clear that it should not be used in that way. In National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (2019) 40 ILJ 1957 (CC), the Constitutional Court held that employees do not always have an inherent duty to “speak up” when they are aware of misconduct by their colleagues.

The Constitutional Court found that the duty to disclose must be accompanied by a reciprocal, concomitant duty on the part of the employer to protect the employee’s individual rights. This includes a duty to ensure that the employee’s safety is protected, as other employees may retaliate against that employee for disclosing their misconduct, which may be the reason why the employee has remained silent.

In addition, there must be clear evidence that the employee was, as a matter of fact, aware of the misconduct by his or her colleagues. In other words, it must be clear that the employee who remained silent, was aware of the misconduct and of the identity of the perpetrators of the misconduct, and that the employee has remained silent despite being required to disclose this information to the employer.