Article 6/2024

LabourEdge

SACCAWU and Others v Makgopela, the CCMA and Cashbuild (Pty) Ltd 2023 (44 ILJ 1229 (LAC); (2023) 34 SALLR 73 (LAC) is the first labour appeal court judgment handed down, so referring to derivative misconduct, after the constitutional court judgment of NUMSA v Dunlop Mixing and Technical Services (2019) 30 SALLR 2 (CC).

The labour appeal court judgment must thus be seen in this light and with the background of the constitutional court taking the following approach:

  • an employee, innocent of the actual perpetration of misconduct, who elects not to disclose information about the misconduct to the employer, is not guilty of derivative misconduct
  • the duty to disclose information about misconduct to the employer is not based on trust and confidence
  • in the above regard, there is no duty of good faith towards the employer (so to speak, the employee is not the employer’s keeper)

Taking the above into account, what are the rules governing derivative misconduct formulated by the constitutional court and recently referred to by the labour appeal court in the Cashbuild judgment (supra)?

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  • The duty to disclose knowledge about unlawful conduct of an employee is not based on a unilateral fiduciary duty.
  • The duty to disclose can, however, be based on a reciprocal contractual duty of good faith created by contract between the employer and the employee that entails, inter alia, the following:
    • the employee is required to disclose to the employer knowledge of the unlawful conduct
    • in return, the employer contractually undertakes to provide safety to the employee
    • in return, the employer also undertakes to protect the employee before, when and after the disclosure
  • The presence at the scene of the misconduct is not a requirement for derivative misconduct to be applicable.
  • The two fundamental requirements for derivative misconduct to be applicable within the aforementioned reciprocal contractual environment entails the following:
    • prior or subsequent knowledge of the misconduct
    • intention to associate with the misconduct
    • evidence of such association with the misconduct

(see, further, NUM v Marley Pipe Systems (2023) 33 SALLR 22 (CC))

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