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Labour law

the strike and, accordingly, in the absence of any exonerate themselves.
explanation, were present.
CCMA: CEPPWAWU judgment (LAC): employer is CCMA: relied on Chauke judgment
required to prove commission of misconduct
The third respondent, in considering whether the (LAC)
applicants had established that the employees were When dealing with derivative misconduct, the third
guilty of derivative misconduct, started by referring respondent relied on the matter of Chauke and
to the matter of CEPPWAWU v NBCCI and Others Others v Lee Service Centre t/a Leeson Motors
[2011] 2 BLLR 137 (LAC), where the court held that: (1998) 19 ILJ 1441 (LAC) and, in particular, the
‘…In cases of collective misconduct an employer following:
can only act against those employees can prove to ‘[31] … Two lines of justification for a fair dismissal
have committed the misconduct complained of.’ may be postulated. The first is that the worker in the
CCMA: nature of derivative misconduct the group which includes a perpetrator may be under
employees were dismissed for - failure to provide a duty to assist management in bringing the guilty
identities of employees directly involved. to book. Where a worker has or may reasonably
It is important to repeat the third respondent’s
finding regarding the nature of the derivative be supposed to have information concerning the
misconduct for which the employees were guilty, his failure to come forward with information
dismissed. may itself amount to misconduct. The relationship
‘I accordingly find that [the employees] were between employer and employee is in its essentials
dismissed for derivative misconduct relating to an one of trust and confidence, and, even at common
alleged failure on their part to provide the [applicants] law, conduct clearly inconsistent with that essential
with particulars of the identities of the perpetrators warranted termination of service. Failure to assist an
of acts of violence, intimidation and harassment employer in bringing the guilty to book violates this
committed from 22 August 2012 to 26 September duty and may itself justify dismissal ...
2012.’ [33] This approach involves a derived justification,
stemming from an employee’s failure to offer
CCMA: onus – knowledge of the reasonable assistance in the detection of those
perpetrators and failure to disclose actually responsible for misconduct. Though the
dismissal is designed to target the perpetrators
The third respondent concluded that the of the original misconduct, the justification is wide
applicant bore the onus of: enough to encompass those innocent of it, but who
‘proving on a balance of probabilities that the through their silence make themselves guilty of a
[employees] knew who the perpetrators of the derivative violation of trust and confidence.’ (The
principal misconduct were and that they failed to words in bold are omitted from the quoted passage
disclose such information to the [applicants]’. in the third respondent’s award).
LC’s response: derivative misconduct in casu – For the rest of this article which contains the
in addition: a breach of trust arising from failure Labour Court’s response and conclusion, log in to
to come forward to identify the perpetrators or the subscriber section at www.hrfuture.net and go
exonerate themselves. to the June 2018 issue (accessible to HR Future
This conclusion ignored the fact that the derivative siubscribers only).
misconduct the applicants relied upon related,
in addition, to failing to identify the perpetrators
and to a breach of trust arising from the failure to Dr Brian van Zyl is a Director of labour law firm Van
come forward, either to identify the perpetrators or Zyl Rudd and Associates, www.vanzylrudd.co.za.

HR FUTURE · JUNE 2018 45