In a recent document published by SA Labour Guide it was pointed out that a ruling by the Constitutional Court places a restriction of the use of “derivative misconduct” to dismiss employees. In short, derivative misconduct is a form of misconduct where an employee fails to offer reasonable assistance in the detection and identification of those employees who are responsible for some sort of misconduct. It means that employees who are aware of misconduct, but chooses to remain silent, may be guilty of a derivative violation of the trust relationship.
According to the document written by James Horn and Neil Coetzer from Cowan– Harper– Madikizela Attorneys, the ruling states that derivative misconduct can only be used as a last resort for employers who are victims of collective misconduct.
They suggest that the application of derivative misconduct can only be used in respect of employees who do not have a fiduciary relationship with their employers. In other words, ordinary employees who have no fiduciary duty do not have to disclose to their employers any knowledge of misconduct.
What does this mean for the employer?
“While the Constitutional Court has not ruled out derivative misconduct as a form of misconduct altogether, it has nevertheless substantially limited its application in respect of employees who do not hold fiduciary relationships to their employers (i.e. directors/prescribed officers)”.
It was suggested that employers would have to be more watchful during strikes to monitor and identify culprits of misconduct themselves. Employers may have to consider using cameras to assist them with this task. It is also vital for employers to keep detailed records of the strike.
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Updated: 4 September 2019