In the case between Company A and Union B obo 34 Members. All employees identified present at the strike action were found guilty of Derivative Misconduct.
The Applicants challenged procedural fairness on the basis that they were denied a right to be represented at the hearing and as a result were not given the opportunity to state their case, call witnesses or make submissions in respect of mitigation. The Applicants challenged substantive fairness on the grounds of blameworthiness and the appropriateness of the sanction.
The challenges faced in this case was that, firstly, the strike action took place almost a year before the arbitration proceedings commenced. Secondly, the company witnesses were employed in the various different divisions of the company and were not able to identify individuals by name. Thirdly, the employee that assisted the company at the time of charging employees was no longer employed by the company at the time of the arbitration and refused to testify. Finally, the new constitutional court case National Union of Metal Workers of South Africa obo Khanyile & Others // Dunlop Mixing and Technical Services Limited & 4 others Case no. CCT (Dunlop Case), described the concept of derivative misconduct presently to be one of a fiduciary duty or duty of good faith between an employee and employer.
In essence, this case provided that there was a duty on employers to offer protection for employees who will come forward in identifying perpetrators of misconduct in cases where employees are being charged with derivative misconduct. Lastly, the principle of Derivative misconduct puts an onus on the employer to dismiss all employees who form part of the group, in this case, all union members and not a portion of them as in this case.
We were cautious, to say the least when proceeding with this matter. When the applicants testified, they did so in solidarity and basically denied every version put to them, despite the video footage presented to them. These applicants went to the extent of denying that they did know each other and therefore, when called upon to identify perpetrators of misconduct, they could not identify anyone. However, through persistent and calculated cross-examination, we were able to find cracks in their evidence which allowed us to show the commissioner that the evidence led by the applicant were untrue and they acted in a concerted effort to protect themselves.
Even though, the Dunlop case was now the new leading case and which Company A was not in compliance with. We used the case to the benefit of Company A, in argument. More specifically, the case provided the following, which had substantial weight in our argument, the Dunlop case held:
at para 75, that 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 of misconduct. Presence at the scene will not primarily be required. Even prior or subsequent knowledge of the violence and the necessary intention in relation to association with the misconduct will be sufficient.”
At para 180- it stated that the arbitrator held that: “The situation in Induna Mills Road during the strike as highly relevant to the derivative misconduct issue. If any of the applicants were present in the group of strikers who committed acts of violence, they would either have been perpetrators of the principal misconduct or be liable for derivative misconduct on the basis that they knew who the perpetrators of the misconduct were and failed to disclose that information to the Respondent. If such applicants had a defence, they would have been expected to give evidence and explain what their defence was.”
It is clear that the Applicants acted in a concerted effort to conceal the identities of their colleagues who committed misconduct during the strike action, more especially as striking employees use their solidarity in their power play with the employer. The onus rests on the applicant to exonerate him/herself.
Based on the aforementioned argument and our ability to show under cross-examination that the applicant’s evidence was not credible, gained us a successful arbitration award in this matter.
Article by: Jamie Moodley
Dispute Resolution Official – Durban