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?


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.’

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.