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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)

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)?