If an employer suspects a group of employees is guilty of misconduct, but cannot identify all of them or prove who is guilty, can everyone in the group be dismissed?
They can, by using derivative misconduct (also referred to as collective misconduct).
What options are available to an employer confronted with a case where clear acts of misconduct have been committed, where it is clear that these acts must have been committed by one or more members of a group of employees but the employer is unable to prove which member of this group actually committed the misconduct? This question, which arises from the principle that the onus lies on the employer to prove misconduct, has caused controversy almost from the beginning of the development of our law of unfair dismissal.
What is derivative misconduct?
In the case of Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) (“Leeson Motors”), the Labour Appeal Court (LAC) introduced the concept of derivative misconduct into labour law. The concept was also used in the case of the City of Cape Town v South African Municipal Workers Union obo and Others (CA7/08)  ZALCCT 4 (“City of Cape Town”).
Derivative misconduct refers to the dismissal of a whole group of employees because they are not prepared to help the employer identify parties of misconduct. When they refuse to assist, they align themselves with the guilty employees. This violates the employer’s relationship of trust.
The facts of the Leeson Motors case:
- The panel beating shop dismissed a shop steward for gross negligence. Because of this, other employees committed acts of sabotage against them. They also damaged vehicles that were in for repair.
- Leeson Motors couldn’t identify the exact culprits.
- It asked the National Union of Metal Workers (NUMSA) and the South African Police Service (SAPS) to intervene.
- NUMSA didn’t want to get involved, and the SAPS wouldn’t help either.
- The employer issued an ultimatum to its employees. It said they would dismiss all employees if there were any more incidents and the culprits couldn’t be identified.
- Two days later another act of deliberate damage took place.
- Leeson Motors gave its employees twenty minutes to give the names of the culprits. None of them would give information.
- The company dismissed all the employees.
- The employer held talks with NUMSA. It said it would re-employ the employees if they identified the culprits.
The facts of the City of Cape Town case:
- The City of Cape Town dismissed some 93 Metro Police Officers during 2007 for, in essence, having been responsible for blockading the N2 going to the City during peak early morning traffic.
- The South African Municipal Workers’ Union (SAMWU) referred the dispute to the South African Local Government Bargaining Council (SALGBC) and claimed that the employees were unfairly dismissed.
- The issue of collective misconduct amongst employees was raised as one of the challenges, as the City of Cape Town was unable to identify the employees whilst they were busy blockading the N2.
- The identification method used was to identify all those present at the Civic Centre in Cape Town and to then make the conclusion that those employees present at the Civic Centre must have participated in the blockading of the N2.
- SAMWU also challenged the inconsistent application of the rule in that some employees were offered plea bargains and others were not.
In the next two articles we shall discuss how to dismiss a group of employees who were not directly involved in the misconduct, what the court said about this and deal with each of the two cases separately.
- Labour Law Advocate
- Contemporary Labour Law, Volume 24, No 12, July 2015