The dismissal of employees who carry out serious misconducts, like violence or theft, will obviously be fair. The dismissal of those employees who are identified as being present when the theft or violence took place but who does not physically participate in the act will also be fair.
But what about dismissing those employees who were probably present but could not definitely be identified as having been present?
This was the question that was answered by the Labour Appeal Court on 17 July 2018 in Numsa obo Khanyile Nganezi and others & Dunlop ( DA 16/2016 which judgment is reportable).
The brief facts of the case were as follows :
a strike began, and violence became its hallmark. An interdict against the violence was granted on the basis that there was evidence of attacks on cars; the throwing of stones and setting up of blockades.
The violence further escalated and included :
setting alight the homes of a manager and of a foreman; assaults on staff; smashing windows; scrawling death threats on a billboard; theft of a camera being used to record the violence, and on one occasion, throwing a petrol bomb.
The entire workforce ( across 3 of the associated companies – collectively referred to as Dunlop ) were all dismissed.
Those employees that carried out the violence, and those employees who were identified as being present when the violence took place were found to have been fairly dismissed.
The difficulty arose in regard to those employees who could not be clearly identified as being present when the violence occurred.
The commissioner found their dismissals to be unfair and they were reinstated. The Labour Court (LC) overturned the decision and found that the dismissals were fair, and so the matter then proceeded to the Labour Appeal Court (LAC).
The issue of “derivative misconduct” was at hand.
What is derivative misconduct?
Derivative misconduct involves the conscious refusal by an employee to disclose information of a harm being perpetrated by other persons against an employer’s interests, and which non-disclosure then constitutes a breach by an employee of the duty of good faith to the employer.
The question is how do you establish that the employee indeed had the information in the first place ( and which was then deliberately withheld from the employer)?
The reason why the commissioner held that the employees could not be dismissed on the basis of derivative misconduct was because they had not been identified individually as being present when the violence occurred ( and therefore could not have known of the violence).
The LC and then the LAC found that the commissioner had not looked at the indirect evidence ( ie. in the form of inferences that could be drawn ) and that this indirect evidence needed to be considered.
Accordingly, once it can be inferred from the evidence that the employees probably were present during the violence, it would then be established that the employees “knew or must have known” who perpetrated the violence. It was thus necessary to establish that the employees probably were present during the violence.
The LAC found that based on the fact that :
- it was unlikely that strikers would be absent themselves from the demonstrations which is the very fibre of a strike, that they were each present, for at least some of the time, and equally probably, that they were each present most of the time, even if not everyone was religiously present on each and every day;
- the case advanced on behalf of the employees ( that no violence occurred ) was a palpable lie, in that 37 of their co-employees were positively identified as perpetrating violence in the presence of other employees ;
- the employees did not take the opportunity given to them to distance themselves from the violence by claiming they were absent or were innocent bystanders,
that the inferences were that the employees were present at some or all of the incidents where the misconduct occurred, and that they thus had actual knowledge of such misconduct and/or of the perpetrator(s) thereof; that they failed to disclose this information to their employer, and that their dismissals were thus fair.
The above scenario would also play out where for example there is theft that is taking place at a company and the culprits cannot be individually identified. All the surrounding circumstances would have to be carefully analysed in order to establish that all the employees that could possibly be involved in the theft knew or must have known who perpetrated the theft. Once this has been established, it is then to be determined whether or not they are deliberately refusing to share this information with the employer.
Failing to do an exercise of this nature without expert legal advice may result in having to again employ the dismissed employees simply because the evidence was not properly collated and presented.