Do employers understand the complexities involved in proving a case of derivative misconduct against an employee in the workplace? This article shall serve as a reminder that any employee who becomes aware of wrongdoing in the workplace, which wrongdoing can adversely affect the employer, and who fails to disclose such knowledge to their employer, can face disciplinary action for having breached his or her duty to act in good faith.
Employers ought to keep in mind the difficulties involved when it comes to proving a case of derivative misconduct against an employee. This offence is not to be confused with the primary misconduct committed: a classic example of this would be an employee who regularly pilfers from the employer’s cash till, and a co-worker who is well aware of this malpractice – the second employee is guilty in his or her failure to disclose relevant information to his or her employer that would be vital in instilling corrective discipline.
An explanation for the non-disclosure cannot be mistaken as a sound defence to the charge. Any Legal Advisor who has chaired a disciplinary hearing wherein an employee has been charged with derivative misconduct can attest to the possibility that the employee has simply replaced the duty to act in good faith to the employer with a duty, not to “pimp” on his or her co-worker. The reasons for upholding the interests of a colleague over and above the employer will differ from case to case.
In the Labour Appeal Court case of Western Platinum Refinery Ltd v Hlebela and others, derivative misconduct referred to the fact that the employee “consciously chooses not to disclose” the information pertinent to the wrongdoing.
It was in this case that essential elements related to this offence were made clear:
- The information that the employee fails to disclose must be “actual knowledge”;
- The information must have been intentionally withheld by the employee;
- The seriousness of the primary misconduct and the position held by the employee, who fails to notify his or her employer, may well aggravate the situation.
The employee cannot rely on a defence of no request made by the employer to disclose information – this is a duty that exists regardless. What ought to be kept in mind is that if an employer, during the course of an investigation, examines an employee with a view to determine whether he or she holds any information and that employee chooses to be dishonest with the employer, this can only aggravate the employee’s circumstances.
When considering the merits of a case, employers must keep in mind that it is not enough to show that one or more employees might reasonably have knowledge of the primary misconduct – it must be proven, on a balance of probabilities, that the employee was well aware of primary misconduct.
Furthermore, the offence of derivative misconduct cannot be mistaken as dismissible in all instances – silence may be equated as guilt but guilt does not automatically justify termination of services.
ABOUT THE AUTHOR
Meggan Watson is a SEESA Labour, Consumer Protection and POPI Legal Advisor at SEESA’s Port Elizabeth office.
Prior to joining SEESA in 2015, she completed her Articles of Clerkship in Bloemfontein.