What’s the difference between collective and derivative misconduct and why is it important to distinguish between them?

PRASA Case

PRASA1 had to pay a high price for failing to make the distinction after it fired 700 employees for derivative
misconduct. They suspected NTM members for burning train coaches during a strike about organisational
rights. Their suspicions arose from comments officials made at union meetings which the company interpreted as inciting employees to burn trains.

The company sent a notice to striking employees alleging that they were jointly and severally responsible for the damage. The notice invited them to make written representations why they should not be dismissed.

The union’s lawyers provided a collective response to the notice in which they denied their members were responsible. It advised that their members offered their assistance to identify the culprits. The company rejected this response and dismissed striking employees who had not submitted individual explanations.

Collective Guilt
The doctrine of collective guilt involves punishing an entire group for the misconduct of some of its members, even though there is no evidence to prove common purpose2. The courts have rejected this doctrine as being repugnant to our law. It runs counter to the principles of natural justice which recognises that a person is presumed to be innocent until proved guilty.

Common Purpose
The doctrine of common purpose imputes liability for an act of the perpetrator of a criminal act to those who associate themselves with the act before or during its commission. The courts have accepted this principle. It is not necessary to show that each party performed a specific act to achieve the common objective or contributed causally to the outcome â€" association in the common design renders the act of the principal offenders the act of all.3 But the court4 has warned employers that the doctrine of common purpose must not be used as an excuse for collective punishment, or to be confused with the concept of “collective guilt”.

Derivative Misconduct
The doctrine of derivative misconduct holds that the dismissal of an employee is derivatively justified in relation to the primary misconduct committed by unknown others, where an employee, innocent of actual perpetration of misconduct, consciously chooses not to disclose information known to that employee pertinent to the wrongdoing.5 The concept is based on the principle that an employee owes a duty of good
faith to an employer. The employee breaches the duty if he or she fails to disclose information he or she has about activities of others which undermines the employer’s business interests.

Essential Elements
In the PRASA case, the Labour Court found the dismissals were substantively and procedurally fair. But the Labour Appeal Court (LAC) disagreed and found the dismissals unfair. This was because PRASA had failed to prove the essential elements required for dismissals on the basis of derivative misconduct.

In summary:

1. The information or knowledge that the employee fails to disclose must be “actual knowledge”.
2. The non-disclosure must be deliberate.
3. The seriousness of the primary misconduct and the rank of the employee who discloses it, at most affects the gravity of the non-disclosure.
4. The employee need not have a common purpose with the perpetrator.
5. An explanation for the nondisclosure is not a defence to the charge, but it may be used as a mitigating factor. 

January 2019
1 NTM
2 Grogan Dismissal 2nd ed. 335
3 Grogan 334
4 NSGAWU v Coin Security [1997] 1 BLLR 85 (IC)
5 Western Platinum Refinery Ltd v Hlebela and others

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