Derivative misconduct is a term used when an employee knows of misconduct, for example, theft, and does not inform the employer.
Such an employee may be dismissed for such misconduct. Derivative misconduct, therefore, arises when an employee possesses information that would enable an employer to identify wrongdoers in the workplace, but they fail to come forward.
The burden of proof on an employer to justify dismissal relying on such conduct is, however, nothing but easy.
The Constitutional Court confirmed these requirements in a unanimous judgement in the matter between the National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others [2019] ZACC 25.
The court held that our law does not imply fiduciary duties in all employment relationships. The duty generally arising in an employment relationship is a reciprocal contractual duty of good faith. This does not impose an obligation on any employee to disclose information of misconduct of their fellow employees to their employer in the absence of any reciprocal obligation by an employer itself to give something to the employees in return (such as guarantees for their safety).
In terms of the contractual duty of good faith applicable to all employees, it is reciprocal, and consequently, employees who are called to identify those committing misconduct must be offered something in return.
In terms of the abovementioned judgment, the Constitutional Court found that in order to prove derivative misconduct, it must be the most probable inference that an accused employee:
- Was present at an instance where the misconduct was committed;
- Would have been able to identify those who committed the misconduct;
- Would have known that their employer needed the information from them;
- Failed to disclose the information to their employer;
- Did not disclose the information because they knew they were guilty and not for an innocent reason.
While the Constitutional Court has not completely ruled out derivative misconduct, it has nevertheless significantly limited its application in respect of employees who do not hold fiduciary relationships with their employers.
The judgment means that employers will need to be more vigilant in monitoring and identifying perpetrators of misconduct in the workplace. Employers are required to demonstrate by way of either direct or compelling circumstantial evidence that the employee(s) in question is directly or indirectly associated with or participated in the misconduct in question.
Should you have any questions or require assistance regarding derivative misconduct or any other subject matter in the workplace, please contact your nearest SEESA Labour legal advisor for expert advice. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Danie Wessels started his career at SEESA in April 2022. He is a BEE & Labour Legal Advisor at the SEESA Port Elizabeth branch. After obtaining his LLB degree from the University of the Free State, he was admitted as an Attorney and practised law for 12 years prior to joining SEESA.
Resources:
- National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others [2019] ZACC 25;
- James Horn and Neil Coetzer of Cowan-Harper-Madikizela Attorneys. https://www.chmlegal.co.za/the-constitutional-court-restricts-the-use-of-derivative-misconduct;
- Anel Oosthuizen – Motor Industry Staff Association SA. https://www.misa.org.za/derivative-misconduct/;
- Kelsey Allen – De REBUS (1 September, 2019). https://www.derebus.org.za/the-death-of-derivative-misconduct/.