From time to time, an act of misconduct is committed at work before witnesses, who choose to remain passive in not identifying the perpetrators. Case law clearly supports the contention that such circumstances justify disciplinary action, which could include dismissal.
Don’t side with cheating colleagues
By Tony Healy
This article was originally published on page 4 of The Star Workplace on September 01, 2004
Published on the Web by IOL on 2004-09-06 05:07:00
From time to time, an act of misconduct is committed at work before witnesses, who choose to remain passive in not identifying the perpetrators.
Case law clearly supports the contention that such circumstances justify disciplinary action, which could include dismissal.
As identified by Grogan (2002), “The idea of derivative misconduct was first suggested by the Labour Appeal Court (LAC) in Fawu v Amalgamated Beverage Industries in 1994.
“In this case, a large number of striking workers had assaulted a so-called scab worker while he was rendering services during a strike.
“Although it was clear which workers had clocked in that day and which ones were in the vicinity of the assault, none identified the perpetrators of the assault or indeed pledged their innocence during the subsequent disciplinary hearing or the industrial court case.”
The LAC therefore held, inter alia, that “In the field of industrial relations, it may be that policy considerations require more of an employee than that he merely remain passive and his failure to assist in an investigation of this sort may itself justify disciplinary action”.
Derivative misconduct was again addressed at the LAC in 1998 in Chauke & others v Lee Service Centre CC [JA91/97].
In this case, management was unable to identify those workers who had committed ongoing acts of sabotage.
Eventually, an ultimatum was issued (a copy of which was sent to the union) in which workers were warned that any further sabotage to any vehicle, where the culprit could not be identified, would result in their instant dismissal.
When a further incident of sabotage occurred, the employer assembled the workers and told them they had 20 minutes “to submit the names of the culprits”.
None complied, after which the employer issued dismissal notices to all the workers in the section where the sabotage had occurred.
The then Industrial Court held that the dismissals were procedurally and substantively fair, after which the union appealed to the LAC.
The LAC held that each worker in the section had been “on one or more occasion individually involved in planning or inflicting the sabotage, or that each worker knew who was responsible, and deliberately chose to associate himself with him or them through silence”.
This, held the judge, “justifies drawing a primary inference of culpable participation”.
The LAC therefore upheld the dismissals.
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A case in point
Donovan Mc Geer v South Quay Imports
CCMA Arbitration Case
The applicant, a salesperson, alleged that he had been unfairly dismissed for late-coming.
The respondent testified that the applicant arrived for work 10 minutes late on the day in question.
The applicant did not explain the reason for being late after which he became rude when asked why he had been late.
The respondent concluded his evidence by stating that he dismissed the applicant as he had become rude and could not justify his late-coming.
The applicant denied having been rude and submitted that the respondent did not afford him an opportunity to give his reasons for being late.
The commissioner held that the respondent should have convened a disciplinary hearing at which the applicant could have stated his side.
In failing to do so the respondent had acted unfairly.
The dismissal was further held to have been procedurally unfair and the applicant was awarded two months’ compensation.