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Article 18/2023

Finally, the constitutional court, in NUMSA v Dunlop Mixing and Technical Services (2019) 30 SALLR 2 (CC), had to determine the content of derivative misconduct, so entailing an alleged duty on an employee to disclose his knowledge of primary misconduct.

What approach did the constitutional court adopt?

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  • In view of the approach adopted by the constitutional court, the following principles are no longer applicable:
    • an employee, innocent of the actual perpetration of misconduct, is guilty of derivative misconduct if he or she elects not to disclose such information
    • the aforesaid duty is based on trust and confidence, being part of the duty of good faith of an employee towards his or her employer
    • mere knowledge of the primary misconduct triggers such a duty, without an employer’s request
    • some or other justification not to disclose the primary misconduct (e g potential community pressure) is not a defence but potentially a mitigating factor
  • Subsequently, in NUMSA v Marley Pipe Systems (2022) 33 SALLR 22 (CC), the constitutional court further held that common purpose and derivative misconduct are no longer mutually exclusive
  • Thus, in the scenario where an employee is not present at the scene of the primary misconduct, the constitutional court held, in Dunlop Mixing, in respect of the duty to disclose
    • such duty cannot be based on a unilateral fiduciary duty to disclose such information
    • such duty to disclose, however, can be based on a reciprocal contractual duty of good faith – e g before requiring an employee to disclose, the employer must provide a guarantee for his safety and provide protection before, during and after disclosure
    • evidence (direct or circumstantial) that the employee associated himself with the misconduct
      (before it commenced, or even after it ended) may be sufficient to establish complicity in the
      primary misconduct (accessory after the fact)
    • presence at the scene of the primary misconduct is not a requirement
    • prior or subsequent knowledge of the misconduct and the necessary intention in relation to
      association will be sufficient
    • prior or subsequent knowledge of the misconduct and the necessary intention in relation to
      association will be sufficient
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?