In Part 1 of this article we referred to two cases, i.e. Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) – the Leeson Motors case – and City of Cape Town v South African Municipal Workers Union obo and Others (CA7/08)  ZALCCT 4 – the City of Cape Town case.
We said in Part 1 that group or derivative misconduct refers to the dismissal of a whole group of employees because they are not prepared to help the employer identify parties of misconduct. When they refuse to assist, they align themselves with the guilty employees. This violates the employer’s relationship of trust.
In this article we are focussing on the Leeson Motors case first. We shall discuss how to dismiss a group of employees who were not directly involved in the misconduct and what the court said about this. We shall focus on the City of Cape Town case in Part 3.
The facts of the Leeson Motors case were given in Part 1.
What did the Labour Appeal Court (LAC) say about this case?
The LAC held that the employer was justified in dismissing the employees even though it could not identify the perpetrators.
It decided this for two reasons:
1. Operational grounds.
Where the employer knows one of only two workers is planning major and irreversible destructive action but cannot identify which one, the employer has to dismiss an innocent employee to protect its business.
There is no innocent party and the employer has enough evidence to decide the whole group is responsible for the misconduct. The dismissal is justified on the ground that employees have a duty to assist the employer in identifying the culprits and their failure to do so violates the trust relationship.
The outcome of the case
The LAC concluded from the employees’ failure to help identify the perpetrators, they were either involved in the misconduct or associated themselves with the misconduct.
What does this case mean to employers?
Employees have a duty to assist the employer to identify perpetrators of misconduct in its workplace. They breach the trust relationship inherent in the employment relationship if they do not do this.
An employer can charge and dismiss an employee for the principal misconduct even if the employer cannot identify the perpetrators and if the employees refuse to assist in identifying them.
To justify dismissal, the employer must prove on a balance of probabilities that:
- Employees in the workplace committed the principal misconduct;
- It is unable to identify the culprits;
- The employees in the workplace either participated in or knew about the misconduct. Use either direct evidence or inferences and circumstantial evidence to prove this, as in the RSA Geological Services case; and
- Despite an opportunity to do so, the group of employees failed and/or refused to assist the employer in identifying the perpetrators of the misconduct.
Once the employer proves the above on a balance of probabilities, the group of employees must show they did not participate in or know about the misconduct.
If they cannot, or would not, the employer can assume they were either involved in the misconduct or were associated with it. The employer could then dismiss based on the breach of the trust relationship.
In Part 3, the final article of this series, we shall discuss the City of Cape Town case.