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Labour law

• those who had not been identified as being establishing that respondent employees, who were
present during the direct misconduct, who were not specifically identified as having been present
not guilty of derivative misconduct and should during the ‘direct misconduct’, were accordingly not
not have been dismissed. guilty of derivative misconduct.
The applicants only sought to review that portion In their evidence, the applicants’ witnesses
of the arbitration award relating to the third category amplified and explained the basis of their averment
of employees. that the respondent employees, despite not being
The applicants apply to review and set aside identified, were guilty of derivative misconduct and,
paragraphs (a), (b) and (c) of the third respondent’s therefore, fairly dismissed as it could be inferred that
award and for the award to be corrected by they were present during the acts of misconduct.
determining that the dismissal of those employees The applicants’ evidence went further than simply
was fair (‘the 65 respondent employees’). relying on the respondent employees’ failure
to provide ‘particulars of the identities of the
Findings of the labour court perpetrators’.
Detail of the arbitrator’s finding: In their pleadings, and during the evidence, the
1. whether employees were present during the applicants averred that the respondent employees
direct misconduct and therefore obliged to disclose were guilty of derivative misconduct in that they
The review was confined to the third respondent’s committed a breach of the trust relationship by failing
finding that the distinguishing factor between those to come forward and either:
employees fairly dismissed for derivative misconduct • exonerating themselves by explaining they were
and those found to have been unfairly dismissed for not present during the ‘picketing’ and ‘direct or
derivative misconduct was simply whether or not the principle misconduct’ or could not identify the
applicants’ had discharged the onus of establishing perpetrators: or
that those employees listed in paragraphs (a), • identifying the perpetrators.
(b) and (c) of the award were present during the The applicants averred that it was:
commission of the ‘acts of violence, intimidation and ‘illogical and unreasonable [for the third respondent]
harassment’ (the ‘direct or principle misconduct’) to hold that such respondents were entitled to decide
and therefore obliged to provide the applicants with not to testify because there was no evidence against
the ‘particulars of the identities of the perpetrators’. them’.
2. employees dismissed for failure to provide the The applicants averred that, accordingly, the
identities of the perpetrators decision of the third respondent was not one which
The third respondent, in addition, held that the could be reasonably reached on the evidence and
derivative misconduct for which the employees were other material placed before him.
dismissed: Crucial to the enquiry is, firstly, a careful
‘was misconduct relating to an alleged failure on consideration of the nature and extent of the
their part to provide the [applicants] with particulars derivative misconduct.
of the identities of the perpetrators of acts of
violence, intimidation and harassment committed I. Approach of the CCMA
from 22 August 2012 to 26 September 2012’. It is not unreasonable to infer, not only from the
The essence of the applicants’ ground of review applicants’ evidence but from the evidence of the
was directed at the third respondent’s conclusion respondents at the arbitration, that the all striking
that the applicants had not discharged the onus of employees were engaged in and participated in

44 JUNE 2018 · HR FUTURE