Where individuals within a group of employees have committed misconduct, members of the group may refuse to give information to assist in identifying the culprits. What action can be taken?
The doctrine of “derivative misconduct” has been applied where an employee has failed to offer reasonable assistance to an employer to identify employees that were responsible for misconduct. Employees may be charged with derivative misconduct where employees who participated in misconduct can be distinguished from those who did not participate, but knew about it. A different approach is called for where this distinction cannot be clearly made. Derivative misconduct is also a slippery concept that is not often applied. Perhaps a more straightforward approach is called for.
In the matter of RSA Geological Services of De Beers Consolidated Mines Ltd v Grogan, management received a tip-off from a secret informer that kimberlite sample, used for testing the diamond content of gravel, had been dumped into two disused boreholes. 453kg of kimberlite sample was subsequently recovered from the boreholes. There were fifteen suspects who worked in the Kimberley Micro Diamond Laboratory. After being confronted by management, one employee confessed to the dumping of the sample. He also directly implicated two others. Interviews were held with the remaining employees. They denied knowledge of the misconduct and refused to submit to polygraph tests. When the employees collectively refused to provide any information that could assist the company in identifying the culprits, they were all charged with participating in the principal misconduct, disciplinary hearings were held and they were ultimately dismissed by the company. Some of these employees were reinstated following private arbitration, however, the company took the arbitration award on review to the Labour Court.
In the court’s opinion, derivative misconduct may diminish the culpability of an employee for the principle misconduct, but it cannot diminish the standard of proof. For certain technical reasons derivative misconduct did not apply in this case. The court found that, on a balance of probabilities, the employer had proved participation by all the employees. The court reached this conclusion mainly because of circumstantial evidence, such as that the dumping had been perpetrated over a long time and during working hours, the boreholes were close by and easily visible, the employees worked closely as a small team and took their meal breaks together, they refused to undergo polygraph tests, they were given a note bearing the telephone number where they could provide information anonymously and that they collectively returned the note to management. The employer’s evidence called for an answer which the employees were best placed to give. No adverse inference could be drawn from their refusal of to undergo polygraph tests. However, a bare denial by the employees was insufficient. In the absence of evidence by the employees to rebut the evidence submitted by the company, the court found that all the employees had participated in the principal misconduct.
The court placed particular emphasis on the fact that the employees had collectively returned the note that invited them to anonymously disclose information. From this act could be inferred that they had resolved to stand by each other and that they were trying to limit the risk of any employee succumbing to the company’s appeal for information.
This case illustrates once again that the standard of proof in disciplinary matters is notably less onerous than in criminal cases. It also illustrates that there is more than one approach in dealing with elusive transgressors and employees who refuse to assist the employer in identifying the culprits. Not only can the employee be charged and found guilty of his or her failure to assist the employer, or in lending support or associating himself or herself with the misconduct, but a non-cooperative employee can in certain circumstances also be found guilty of the principal misconduct.
Written by Jan Truter of www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting SMMEs with the implementation of effective labour relations. They can be contacted via www.labourwise.co.za or email@example.com