What Is Derivative Misconduct
Nozipho Mvulane
Derivative Misconduct
In South African labour law, derivative misconduct refers to a situation where an employee is implicated in misconduct as a result of their association or involvement with another employee’s misconduct. Snitching, in this context, refers to the act of reporting or providing information about another employee’s misconduct to management or relevant authorities.
Derivative misconduct occurs when an employee is linked to or implicated in another employee’s misconduct, even if they were not directly involved in the misconduct themselves. This could include situations where an employee knew about the misconduct but failed to report it or actively assisted or covered up the misconduct.
In many instances, charging employees for derivative misconduct is the last resort for employers who are the victims of collective misconduct and who are unable to identify the perpetrators of that violence. In such cases, employees who can identify those who committed the misconduct but fail to do so are dismissed for their breach of their duty of good faith to their employer. This has become known as derivative misconduct.
Employer’s Obligations
Employers have a duty to investigate allegations of derivative misconduct thoroughly and fairly. They should consider the evidence and circumstances surrounding the alleged misconduct and take appropriate disciplinary action if necessary. Employers may need to conduct separate investigations to determine the involvement or culpability of each employee.
Disciplinary Action
If an employee is found to be involved in derivative misconduct, they can face disciplinary action, which may include warnings, suspension, or even dismissal, depending on the severity of their involvement. The disciplinary process should be fair and in line with the principles of natural justice, including giving the employee an opportunity to state their case and respond to the allegations.
Protection from Retaliation
Employees who report misconduct or provide information about another employee’s wrongdoing should be protected from retaliation. Whistleblower protection laws may apply to safeguard employees from adverse actions or victimization as a result of reporting misconduct in good faith.
Ethical Considerations
Employees have an ethical responsibility to report misconduct that they become aware of, even if it involves their colleagues. Failing to report serious misconduct may be viewed negatively and could potentially implicate the employee in derivative misconduct if they knowingly participated in covering it up or remaining silent.
Conclusion
While the Constitutional Court has not ruled out derivative misconduct as a form of misconduct altogether, it has nevertheless substantially limited its application in respect of employees who do not hold fiduciary relationships to their employers (i.e. directors / prescribed officers).
It is important for employers and employees to familiarize themselves with their respective rights and obligations regarding misconduct, reporting, and disciplinary processes. Consulting labour law experts or seeking advice from the Commission for Conciliation, Mediation, and Arbitration (CCMA) or relevant labour forums can provide further guidance on specific cases or situations related to derivative misconduct and snitching in South African labour law.
For further information of any of your legal needs, please contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za or on 073 2777 973.
Article Disclaimer
This article is not intended to provide legal advice. This article is a general information sheet and should not be used or relied on as legal or other professional advice. This article is based on research regarding laws and may be subject to change. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).
