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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))

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)?