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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)

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.

September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?