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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  • In view of the approach adopted by the constitutional court, the following principles are no longer applicable: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
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?