Collective misconduct and discipline

Sanelisiwe Nyasulu, an Associate in the Labour Dept

When a number of employees become involved in the same misconduct their actions are generally known as collective misconduct. This can take a number of different forms and difficulties face the employer in regard to the basis upon which the employees may be disciplined, especially when only some out of all those involved in the misconduct are punished. In cases of collective misconduct it must be shown on a balance of probabilities that each individual against whom disciplinary is taken was actually involved.

Common purpose misconduct as its name implies, has its origins in criminal law and those who make common cause with the actions of the actual perpetrator before or after such actions are performed are held to be equally liable for the wrongful act. In the Labour Appeal Court case of Leeson Motors in 1998 the court described this form of misconduct as “when two or more people associate themselves with the perpetrator but, by choice or design, the others do not physically perform the actions which bring about the criminal result”. It is necessary that the others share the perpetrator’s “guilty state of mind” but it is not necessary to show that each performed a specific act of misconduct although an active involvement in the actions of the perpetrator must be proved. This does not permit common purpose to be used as a short cut to dismissal and in the case of misconduct during a strike action, for example, if a few strikers cause damage to the employer’s property, this does not mean that all the employees taking part in the strike can be assumed to have actively associated with those who caused the damage. This is repugnant to our law. Common misconduct must be distinguished from “collective guilt” which rests upon the assumption that a wrongful act by an individual member of a particular group allows the whole group to be punished for that act. Common misconduct, properly applied and correctly proved, will warrant the dismissal of a group of employees but management must ensure that the facts of each incident are sufficient to raise the inference that all such employees individually shared responsibility for the primary misconduct.

Derivative Misconduct is another form of collective misconduct. It is based on an employee’s refusal to divulge information that might help the employer to identify the perpetrator of misconduct and/or negligence. This principle is founded on the notion of trust in a relationship between the employer and the employee. Accordingly an employee may be found guilty of misconduct, not for his or her involvement in the primary misconduct but because it can be proven he/she knew or learned of the perpetrator’s identity but refused to assist the employer in its quest to apprehend and discipline the perpetrator/s of the original offence. This was discussed in the recent Labour Appeal Court case of NUM & Others v Grogan NO & Others in 2010. Before charging employees for derivative misconduct, employers are advised to conduct a thorough investigation into the misconduct and only once the employer is confident that he/she can prove, on a balance of probabilities, that an employee knew or could have reasonably acquired knowledge of the primary misconduct and either unjustifiably failed or wilfully refused to assist the employer in the identification or knowledge of the culprits, can the employee be charged. Employers are cautioned that an employee’s refusal to undergo a polygraph test may not be taken to prove that they are withholding information.