RSS

Labour Law in a Nutshell November 2018

LABOUR LAW IN A NUTSHELL November 2018

COLLECTIVE MISCONDUCT:   What’s the difference between collective and derivative misconduct and why is it important to distinguish between them?

PRASA Case

PRASA[1] had to pay a high price for failing to make the distinction after it fired 700 employees for derivative misconduct. They suspected NTM members for burning train coaches during a strike about organizational rights. Their suspicions arose from comments officials made at union meetings which the company interpreted as inciting employees to burn trains.

The company sent a notice to striking employees alleging that they were jointly and severally responsible for the damage.  The notice invited them to make written representations why they should not be dismissed.

The union’s lawyers provided a collective response to the notice in which they denied their members were responsible.  It also advised that their members offered their assistance to identify the culprits. The company rejected this response and proceeded to dismiss striking employees who had not submitted individual explanations.

Collective Guilt

The doctrine of collective guilt involves punishing an entire group for the misconduct of some of its members, even though there is no evidence to prove common purpose.[2] The courts have rejected this doctrine as being repugnant to our law. This is because it runs counter to the principles of natural justice which recognises that a person is presumed to be innocent until proved guilty.

Common Purpose

The doctrine of common purpose imputes liability for an act of the perpetrator of a criminal act to those who associate themselves with the act before or during its commission. The courts have accepted this principal. It is not necessary to show that each party performed a specific act to achieve the common objective or contributed causally to the outcome – association in the common design renders the act of the principal offenders the act of all.[3] But the court[4] has warned employers that the doctrine of common purpose must not be used as an excuse for collective punishment, or to be confused with the concept of “collective guilt”. 

Derivative Misconduct

The doctrine of derivative misconduct holds that the dismissal of an employee is derivatively justified in relation to the primary misconduct committed by unknown others, where an employee, innocent of actual perpetration of misconduct, consciously chooses not to disclose information known to that employee pertinent to the wrongdoing.[5] The concept is based on the principle that an employee owes a duty of good faith to an employer. The employee breaches the duty if he or she fails to disclose information he or she has about activities of others which undermines the employer’s business interests.

Essential Elements 

In the PRASA case, the Labour Court found the dismissals were substantively and procedurally fair. But the Labour Appeal Court (LAC) disagreed and found the dismissals unfair. This was because PRASA had failed to prove the essential elements required for dismissals on the basis of derivative misconduct.  It summarised the elements as follows –

  1. The information or knowledge that the employee fails to disclose must be “actual knowledge”.
  2. The non-disclosure must be deliberate.
  3. The seriousness of the primary misconduct and the rank of the employee who discloses it, at most affects the gravity of the non-disclosure.
  4. The employee need not have a common purpose with the perpetrator.
  5. An explanation for the non-disclosure is not a defence to the charge, but it may be used as a mitigating factor.

TIP: It is essential for an employer to properly assess the circumstances of a particular case of group misconduct and then to select and apply the correct legal doctrine to respond to it. If derivative misconduct is selected, the employees should be charged with a breach of the duty of good faith which they owe to their employer.  It will be evident from this case study that the failure to do so can cost the employer dearly.  

November 2018

PATRICK DEALE
Labour Lawyer & Mediator
Deale Attorneys
Tel: 083 375 8771
Email: patrick@deale.co.za
Web: www.deale.co.za

Offices in Jhb & KZN

[1] NTM v

[2] Grogan Dismissal 2nd ed. 335

[3] Grogan 334

[4] NSGAWU v Coin Security [1997] 1 BLLR 85 (IC)

[5] Western Platinum Refinery Ltd v Hlebela and others

The post Labour Law in a Nutshell November 2018 appeared first on Deale Attorneys.

Source: Deale Attorneys

Sheqafrica
Sheqafrica.com is Africa's largest online Magazine for the Risk & Compliance profession. It is co-owned by Shane Lishman and the Africa Media Group.
The editorial team:
Shane I. Lishman

Independent Contributors and Media Partners:
Patrick Deale - Labour Lawyer
Louis Fourie - Environmental Lawyer
Mabila Mathebula
Rudy D. Maritz

International Callers: +27 78 770 0002

Other Africa Media Publications:
PropertyWeb
Durbs Business Online
Bloem Business Online
Joburg Business Online
Limpopo Business Online
What The Gravel

Originally founded by Ben Fouche of Real Babe Media, Sheqafrica.com has been serving the SHEQ industry since 2007 and contains over 1600 articles from various experts in the Safety, Health and Environmental Management fields. Today, Sheqafrica.com is proudly co-owned by the Africa Media Group(50%) and focuses on Human Resources Management, Risk & Compliance on the African Continent.
The role of the HR and IR practitioner remains undisputed in the selection and placement of competent staff, while the education and training of people goes a long way in achieving business objective.

Sheqafrica.com is an online publication by:
http://www.africamediagroup.co.za

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.