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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  • In view of the approach adopted by the constitutional court, the following principles are no longer applicable: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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?