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Labour law

he Labour Court, in Dunlop Mixing and Pertinent facts of the case
Technical Services (Pty) Ltd and Others v During August 2012 the applicants’ employees (‘the
NUMSA and Others (2016) 27 SALLR 27 striking employees’), all of whom were members
(LC), considered the following important of the first respondent, embarked on protected
Tissues: industrial action ‘in furtherance of a wage dispute’.
(a) With reference to the Labour Appeal Court During the course of the industrial action the
judgment in Chauke and Others v Lee Service striking employees became involved in serious acts
Centre t/a Leeson Motors (1998) 19 ILJ 1441 (LAC), of misconduct all of which are described in detail in
is it a requirement that the employee has actual the third respondent’s (‘commissioner of the CCMA’)
knowledge of the direct misconduct or, alternatively, award and the applicants’ evidence. The strike took
is it sufficient that the employee ‘may reasonably be place at the respondents’ premises in Induna Mills
supposed to have such knowledge’? Road and commenced on 22 August 2012.
(b) With reference to the Chauke judgment supra, In his award, the third respondent described
what is the content of derivative misconduct?
(c) What is the viewpoint of the Labour Court in evidence relating to the striking employees’
casu as to whether or not derivative misconduct has conduct as ‘painting a picture of a dangerously
been established in the scenario where an employer volatile situation’ involving attacks on vehicles and
does not prove that the employees knew the identity ‘tantamount to placing the company’s premises
of the perpetrators, but that the inference is to be under siege.’
drawn that such employees were present during the The conduct of the striking employees was the
direct misconduct and, through their silence, have subject of an interdict granted by the Labour Court
committed derivative misconduct, on the basis of the on 22 August 2012, inter alia, restricting the striking
breach of trust between employer and employee? employees from being within 50m of the access
(d) With reference to the Labour Appeal Court road to the applicants’ premises and interdicting the
judgment in FAWU v ABI (1994) 15 ILJ 1057 (LAC), unlawful conduct.
what is the effect of the failure of employees to It is apparent from the record of the arbitration
give evidence, either in the workplace hearings or that, despite the interdict, the misconduct continued
external fora, regarding them being present during unabated until the dismissals.
the commission of direct misconduct and their failure On 26 September 2012, the applicants terminated
to explain why they did not disclose the relevant the striking employees’ employment for derivative
information to their employer? misconduct.
(e) What is the viewpoint of the Labour Appeal The third respondent found the derivative
Court, formulated in Western Platinum Refinery Ltd v misconduct arose from the failure of the striking
Hlebela and Others (2015) 36 ILJ 2280 (LAC), as to employees to provide particulars to the applicants
whether or not a breach of the duty of good faith is of the identities of the perpetrators of the ‘acts of
established in the circumstances where an employee violence intimidation and harassment committed
remains silent where the employer’s business from 22 August 2012 to 26 September 2012’.
interests are being improperly undermined? At the conclusion of the arbitration, the third
(f) With reference to AA Onderlinge Assuransie respondent found that those employees listed
Assosiasie Bpk v De Beer 1982 (2) SA 603 (A), what in paragraphs (a), (b) and (c) (the respondent
approach is to be adopted to determine whether or employees) of the award had been unfairly
not an inference is the correct one? dismissed and ordered the first, second and third
applicants to respectively reinstate the respondent
Overview employees listed under each paragraph from the
Review application of arbitration award date of the award.
This is an application by the applicants to review • The CCMA commissioner identified three
and set aside portion of the award handed down categories of employees, namely:
by the third respondent pursuant to an arbitration • those who the applicants had established had
conducted into a dispute declared by the first been involved in direct acts of misconduct and
respondent on behalf of certain of its members (‘the who had been fairly dismissed;
respondent employees’) arising from their dismissal • those who the applicants had identified as
by the applicants. being present during the direct misconduct, but
The applicants are all wholly-owned subsidiaries of who failed to provide the applicants with the
Dunlop Industrial Products (Pty) Ltd and all carry on identities of the perpetrators, and were guilty of
business at the factory situated at Induna Mills Road, derivative misconduct serious enough to justify
Howick. their dismissal; and

HR FUTURE · JUNE 2018 43