Strike action by employees is routinely accompanied by violence. An urgent interdict is often necessary but can provide hollow relief to an employer where employees cannot be identified for the purposes of disciplinary action.
In Dunlop Mixing & Technical Services (Pty) Ltd & Others v NUMSA & Others, the Labour Court considered “derivative misconduct” and the duty on employees to disclose information regarding misconduct of fellow employees during a strike. The principle of derivative misconduct stems from the duty of good faith owed by the employee to the employer to disclose information regarding potential misconduct.
The employer was subject to a violent strike described by the CCMA arbitrator as “placing the company’s premises under siege”. Despite the employer obtaining an interdict, the violence continued unabated. The employer dismissed 107 employees for identifiable misconduct and/or derivative misconduct. The employer had called upon the employees to identify the perpetrators of misconduct, the employees elected to remain silent, did not testify at arbitration before the CCMA and failed to identify the perpetrators or explain their whereabouts during the misconduct. The employees denied that any misconduct occurred or knowledge of misconduct. They contended that as they had not been specifically identified by the employer, they had no obligation to identify perpetrators or exonerate themselves.
The CCMA found the dismissal of 42 employees fair. The issue was whether the remaining 65 employees could be dismissed for derivative misconduct in failing to provide the employer with an explanation of their whereabouts or with particulars of the identities of perpetrators of the violence during the strike. The arbitrator found against the employer, who challenged the decision in the Labour Court.
Critical to the decision of the Labour Court was whether the employees, on a balance of probabilities, had knowledge of the misconduct during the strike and if so, whether the failure to disclose this information to the employer or provide an explanation breached the trust relationship. The Court found that in the absence of an explanation, it was reasonably inferred from the evidence of the employer that all employees participated in the strike. Through their silence, the employees made themselves guilty of derivative violation of trust. The Court noted that, unlike criminal proceedings, an adverse inference could be drawn from the employees’ silence. The Court set aside the decision of the CCMA in respect of the 65 employees and found their dismissals for derivative misconduct fair.
This decision shows that provided employers carefully manage strikes and rely on sound legal advice, they need not be impotent against violent strikes. The precedent created by this decision will no doubt serve as an important weapon in the arsenals of employers when disciplining employees participating in violent strikes.