A Critical Analysis of derivative misconduct looking into National Union of Metalworkers of South Africa obo Nganezi and others v Dunlop Mixing and Technical Services (Pty) Limited and others.

Abstract

This dissertation seeks to explore the evolution of derivative misconduct by looking at various court decisions that have contributed immensely to developing the concept of derivative misconduct and which have further contributed to constructing the relevant legal framework which has resulted in the current scope and understanding of derivative misconduct. This research will also highlight the remaining gaps in our law. This dissertation traces the genesis and the development of the concept of derivative misconduct in South African labour law. The concept of derivative misconduct refers to a ground of dismissal where an employee chooses to remain silent and not disclose misconduct committed by another employee to the employer. Our courts have established that a fair reason for dismissing an employee is when the employee would have had knowledge about perpetrators of the primary misconduct and refuses to disclose such knowledge to the employer even though they did not commit the primary misconduct themselves. The Constitutional court in National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (CCT202/18) [2019] ZACC 25; 2019 (8) BCLR 966 (CC) (28 June 2019) has recently made a final verdict on this concept and has highlighted that the duty of good faith is reciprocal duty. The Constitutional Court has signaled for a shift from the approach of placing a unilateral obligation on employees to come forward by also giving the employers a reciprocal duty to ensure that they afford protection to employees before expecting them to come forward.