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  • In view of the approach adopted by the constitutional court, the following principles are no longer applicable: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
April 25, 2025

How did the labour court, in Simunye Workers Forum v Registrar of Labour Relations, per Van Niekerk J, in terms of s111(3) of the LRA, on appeal, deal with the decision of the registrar refusing the application of the aforesaid trade union?

April 20, 2025

How do procedural fairness requirements relating to dismissals based upon misconduct (as well as incapacity), contained in the 1995 LRA, differ from the environment that preceded this Act?

April 15, 2025

The purpose of this article is to, firstly, analyse the latest developments in the above regard and, secondly, to determine some of the principles so applicable to each potential type of suspension.