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Article 65/2022

Derivate misconduct

The constitutional court recently, in National Union of Metalworkers of SA obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others (Casual Workers Advice Office as amicus curiae) 2019 (5) SA 354 (CC); 2019 (8) BCLR 966 (CC), finally determined the principles regulating derivative misconduct.  How has the labour court subsequently applied such principles?

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The Dunlop Mixing and Technical Services judgment (supra), read together with the recent judgment of the labour court in National Union of Metalworkers of South Africa obo Dhludhlu and Others v Marley Pipe Systems (SA) (Pty) Ltd (2020) 31 SALLR 158 (LC); (2020) 41 ILJ 2175 (LC), produce the following summary as to the principles currently governing derivative misconduct:

  • the constitutional court found that the origin of derivate misconduct, as contained in Chauke v Leeson Motors (1998) 19 ILJ 1441 (LAC) (namely, that an employee, innocent of the actual perpetration of misconduct and who selects not to disclose information known to the employee, is guilty of derivative misconduct, based on a breach of trust and confidence), is legally not defensible on the basis that, inter alia, there is no general duty to disclose on an employee and only certain limited types of employees are indeed in such required fiduciary position vis-à-vis their employers
  • the constitutional court also found that the approach adopted in Western Platinum Refinery v Hlebela (2015) 26 SALLR 11 (LAC), to the effect that the mere knowledge of the employee of the misconduct (without the employer making a request) triggers such duty, is also not legally defensible
  • what, however, stands unchallenged is the viewpoint expressed in Western Platinum Refinery to the effect that the doctrine of common purpose and derivate misconduct is mutually exclusive
  • the constitutional court also found that the approach adopted in NUM v De Beers [2004] 1 BALR 1 (B); (2004) 25 ILJ 4110 (Arb), to the effect that derivative misconduct exists where an employee, without justification, fails to disclose knowledge of the wrongdoing to the employer or to take reasonable steps to assist the employer to acquire such knowledge, is not legally defensible
  • the constitutional court also found that the approach adopted in Western Platinum Refinery, to the effect that an employee is justified in not disclosing knowledge of the wrongdoing, constitutes a possible mitigating factor, is also not legally defensible
  • in Dunlop Mixing (supra), in a majority decision, the constitutional court held that it was unnecessary to place an employee on the scene to prove common purpose and indicated that common purpose could be established by inferential reasoning having regard to the conduct of the workers before, during and after the incident of violence. 
  • the constitutional court stated the following in the above regard, at para [46]:

‘[46] Evidence, direct or circumstantial, that individual employees in some form associated themselves with the violence before it commenced, or even after it ended, may be sufficient to establish complicity in the misconduct. Presence at the scene will not be required, but prior or subsequent knowledge of the violence and the necessary intention in relation thereto will still be required.’

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?