The Dunlop case has given a new perspective and places a heavier burden on employers when dealing with the concept of derivative misconduct.


In August 2012, members of NUMSA engaged in a protected strike for approximately a week. During this period of the strike, NUMSA members allegedly committed several acts of violence, intimidation and damage to property. Dunlop dismissed all workers who had been involved in the strike, despite 65 of these workers not being positively identified as being present when the violence had been committed. They were dismissed for derivative misconduct. This concept placed a duty on the employees to assist their employers in identifying the perpetrators, and that failing to disclose any information made them guilty of derivative misconduct. This placed an onus on employees to come forward with information to assist employers in finding the culprit.


The Dunlop case held that derivative misconduct also speaks to the nature and scope of common law duties of both the employer and employee. The case focuses on the reciprocal duty of good faith between the employer and employee. It was held that the contractual duty of good faith, a legal precept does not imply the imposition of a unilateral obligation on employees to disclose known information of misconduct by their co-employees to their employer.


In the context of a strike, as is in this case, the imposition of a unilateral duty to disclose would undermine the collective bargaining power of workers by requiring positive action in the interests of the employer without any concomitant obligation on the part of the employer, to give something reciprocally similar to workers in the form of guarantees for their safety and protection before, when and after they disclose.


The Dunlop case also provided employers with an alternative when it held 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 the 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”. Therefore, not leaving employers entirely without recourse.


While the Constitutional Court has not ruled out derivative misconduct as a form of misconduct altogether, it has nevertheless substantially limited its application in respect of employees who do not hold fiduciary relationships to their employers.


There is now a more stringent requirement to prove derivative misconduct, but any evidence that links an employee to the misconduct may be enough to establish guilt.


Article by: Jamie Moodley

Dispute Resolution Official – Durban