Specific problems arise when a number of employees who were involved in the same act of misconduct are subjected to disciplinary action. These problems relate to the selection of employees to be disciplined, the situation that arises when there is no direct evidence against any or all the individual employees, and the consistency or otherwise of the sanction imposed.
Collective Misconduct
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 action is taken was actually involved.
Derivative Misconduct
Derivative misconduct is a 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.
In many cases employees are ‘selectively’ treated because of the absence of evidence against other guilty employees. Situations sometimes arise in cases of mass misconduct in which there is no evidence against specific employees. One way out of this problem is for the employer to rely on the notion of derivative misconduct.
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.
Common Purpose Misconduct
The doctrine of common purpose emanates from the 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.
Team Liability
There are other scenarios in which employers have been tempted to resort to mass dismissal. One of these occurred in 1996 in the case of SACCAWU & Others v Cashbuild Ltd when the entire staff was held accountable for continued stock losses (shrinkage) that could not be linked to misconduct by a particular employee.
The justification in such cases has generally been accepted as being operational. Employees are given clear instructions to control stock. It is their responsibility to implement controls. Therefore, it is acceptable to hold a team liable, as a group, when they fail to do so.
Source: Grogan – Dismissal, Discrimination & Unfair Labour Practices
