Author: Lungile Mkhize
In the modern workplace, ethics and legal responsibilities are paramount, yet derivative misconduct remains a concept that is often misunderstood. Effectively addressing derivative misconduct is essential for both employers and employees to maintain a fair and compliant work environment.
What is derivative misconduct?
Derivative misconduct refers to a situation in which an employee becomes aware of wrongdoing or misconduct directed towards their employer but fails to report it. This concept is commonly discussed in the context of labour law, particularly during strikes or protests, where violations of picketing rules occur. In such cases, an employer may seek to take action against employees who, despite having knowledge of the rule breaches, failed to disclose the misconduct or take appropriate action.
To better understand derivative misconduct, consider the following examples:
- Strikes and picketing violations: During a labour strike, employees may observe colleagues violating picketing rules (such as blocking entrances or harassing non-striking employees). If an employee sees these violations and fails to report them, they could be considered guilty of derivative misconduct, as they did not take appropriate steps to address or report the wrongdoing.
- Workplace safety violations: If an employee is aware of unsafe practices in the workplace – such as failure to follow safety protocols or the use of hazardous equipment – but doesn’t report the issue, this inaction could be considered derivative misconduct. In this case, the employee is complicit in failing to address the hazard, even if they did not directly cause it.
- Harassment and discrimination: Employees who witness instances of harassment or discrimination but do not report these issues to management or human resources are engaging in derivative misconduct. Their failure to act or disclose the misconduct could contribute to the continuation of the inappropriate behaviour.
Derivative misconduct and strikes: A case study
To better understand how derivative misconduct operates in a strike context, consider a recent case where employees participated in a strike organised by the union AMITU. Although there was no direct evidence linking the striking employees to violent acts, such as firebombing trucks or attacking vehicles, there was a pervasive atmosphere of intimidation and threats associated with the strike. This included the use of weapons like sjamboks, golf clubs, and sticks, as well as threatening social media posts by some of the strikers.
Even though the employees did not directly commit these violent acts, the broader context of violence tied to the strike could be seen as derivative misconduct. For example, strikers, including key figures, encouraged violence against non-strikers and replacement workers. One of the employees posted a message on social media threatening further harm to non-strikers and their families. These actions, while not directly linked to the employees participating in the strike, created a hostile and unsafe environment.
In this context, derivative misconduct refers to the employees’ failure to dissociate themselves from the unlawful and intimidating actions of others involved in the strike. If they were aware of the violence and threats occurring during the strike and did not take action to stop or report it, they could be considered complicit in these actions. This situation highlights the complexities of derivative misconduct, where an employee’s failure to report or oppose misconduct can result in accountability, even when they did not directly commit the wrongful act.
Legal framework for derivative misconduct
Derivative misconduct is rooted in the principle that employees may be held accountable for their failure to act in situations where they know or reasonably should know about misconduct. In the case of Chauke and Others v Lee Service Centre CC, the Labour Appeal Court introduced the concept of derivative misconduct, emphasising that employees could be found guilty if they failed to assist in identifying the perpetrators of misconduct. This failure to act breaches the trust and confidence inherent in the employer-employee relationship, even if the employees were not directly involved in the original misconduct.
Furthermore, the Western Platinum Refinery Ltd v Hlebela case emphasised that an employer must prove actual knowledge of the misconduct, not simply the possibility that employees could have known about it. The Constitutional Court in NUMSA obo Nganezi v Dunlop Mixing Technical Services (Pty) Ltd further clarified that employees do not have a fiduciary duty to report the misconduct of others unless there is a clear reciprocal obligation from the employer, such as guarantees for the safety of the reporting employee.
Application to strikes and picketing
In the case involving the AMITU strike, while the employer attempted to charge employees with derivative misconduct, the court found that there was insufficient evidence to establish that the employees had actual knowledge of the perpetrators of the violence and misconduct. The employer had not proven that the employees were complicit in the violent acts, nor did it show that the employees could have helped identify the perpetrators. The court also noted that the employer had the means to obtain information without relying on the employees’ cooperation.
The employer’s failure to provide safety guarantees for employees who might have been willing to report misconduct further weakened the case. This highlights the importance of employers fulfilling their reciprocal duty of good faith, which includes providing safeguards for employees who report wrongdoing.
Mitigating risks of derivative misconduct
To mitigate the risks of derivative misconduct, employers should implement several strategies:
- Clear reporting channels: Ensure that employees have clear, confidential, and accessible ways to report misconduct. An anonymous reporting system can also help employees feel more comfortable coming forward with information.
- Training and education: Provide regular training on ethical behaviour, legal responsibilities, and the importance of reporting misconduct. Employees should be made aware of the consequences of failing to report known violations.
- Zero tolerance policies: Establish and enforce a zero tolerance policy for any form of misconduct, including derivative misconduct. Clearly define what constitutes derivative misconduct and ensure employees understand their obligation to act.
- Supportive environment: Cultivate a supportive environment where employees feel safe to report issues without fear of retaliation. Employers should be transparent about how reported information will be handled and the steps taken to investigate and resolve concerns.
By incorporating these strategies, employers can promote a culture of transparency and ethical behaviour, reducing the risk of derivative misconduct and fostering a safer and more compliant workplace.
Should you need assistance in establishing derivative misconduct policies for your employees, we are here to help. Contact us on [email protected] for more information.