Derivative misconduct arises when an employee is aware of information that would allow an employer to identify wrongdoers, but they fail to come forward and provide the employer with such information.
Derivative misconduct is usually applied in the context of strikes where there is a breach of picketing rules, and an employer wants to act against those employees who failed to report breaches of the rules by their fellow employees.
The elements that need to be satisfied for a dismissal based on derivative misconduct to be fair were established in the case of Dunlop Mixing and Technical Services (Pty) Ltd and Others v NUMSA obo Nganezi and Others 2016 ZALCD 9:
“The offence must be proven by the employer as follows:
•The information or knowledge that the employee fails to disclose must be “actual knowledge”;
•Non-disclosure must be deliberate;
•The seriousness of the primary misconduct and the rank of the employee who fails to disclose at most affects the gravity of the non-disclosure;
•A request to disclose information need not be made for the duty to disclose to be triggered, but if a request is made and is refused, culpability is aggravated;
•The employee need not have a common purpose with the perpetrator.”
In the recent case of Ncukana / AF Brands (Pty) Ltd – (2022)31 CCMA 8.37.21 also reported at  7 BALR 737 (CCMA), the Applicant was dismissed after the respondent discovered that nearly R5 000 was missing from a bank bag deposited at a bank by a security firm. The missing money was thereafter found in a bag in the drop safe, which was unaccounted for. Another employee later admitted that she had put the money in the safe and had informed the employee that she had done so. The Applicant was dismissed for failing to inform management of the suspicious conduct of her colleague.
The Commissioner applied the test established in Dunlop Mixing and Technical services v NUMSA and held that although the concept of derivative misconduct is usually applied in cases of misconduct during strikes, the requirements mentioned above of derivative misconduct were present. The employee’s non-disclosure was deliberate, and she had been requested to make a disclosure.
It was further held that the employee had the responsibility to act honestly, even if it means such honesty exposes the misconduct of others. However, the Applicant had simply behaved in an evasive manner and denied knowledge of the incident. Therefore, it was held that the dismissal was for a fair reason, and the Application was dismissed.
The case of Ncukana / AF Brands reveals that a dismissal regarding derivative misconduct is not confined to just misconduct that occurs during strikes but also misconduct that occurs during the normal scope of employment.
Article by: Raina Doorasamy
Legal Assistant – CEO Durban