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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))

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?