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Article 34/2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

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  • The constitutional court, in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (2019) 30 SALLR 2 (CC) (Dunlop Mixing), dealt with this issue, referred to as derivative misconduct, in a scenario where the employee, who allegedly had the duty to disclose, was not present at the scene of the primary misconduct.
  • The constitutional court, in Dunlop Mixing, held that such duty to disclose cannot be based on a unilateral fiduciary duty (i e the duty of good faith) to disclose known information of misconduct – this fiduciary duty does not exist, generally, between an employer and employee and only exists where an employee specifically occupies a fiduciary position, such as, potentially, a financial manager.
  • However, it was held that such a duty to disclose can be based on a reciprocal contractual duty of good faith and this entailed, for instance, that before the employer is entitled to require the employee to disclose:
    • the employer must provide a guarantee for the safety of the employee
    • the employer must provide protection before, when and after disclosure
  • So, what is the crux of the test to determine whether or not the employee has made himself/herself guilty of derivative misconduct?
  • An analysis of the test formulated entails, in short, that the following elements must be present before such liability exists:
    • firstly, the employee must have prior or subsequent knowledge of the primary misconduct
    • secondly, the employee must have the necessary intention to associate with the primary misconduct
    • thirdly, there must be evidence (direct or circumstantial) that the employee associated himself with the misconduct (before it commenced, or even after it ended)
  • Subsequently, the labour court in Hollywood Sportsbook Gauteng v CCMA (2024) 35 SALLR 125 (LC), so relying on Dunlop Mixing, found that a derivative misconduct approach is not applicable in the following circumstances:
    • if the employee himself/herself participated in the primary misconduct
    • if the employer was indeed aware of the identity of the perpetrator(s) of the primary misconduct
    • if the employer had the means to establish the identity of the perpetrator(s) of the primary misconduct.

See, further: African Meat Industry v Shave and Gibson Packaging (2024) 45 ILJ 79 (LC)

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