Dunlop Mixing and Technical Services (Pty) Ltd & Others v NUMSA obo Nganezi & Others (D345/14) [2016] ZALCD 9; (2016) 37 ILJ 2065 (LC); [2016] 10 BLLR 1024 (LC) (11 May 2016)

Principle:

Where a reasonable inference can be drawn that employees were present during misconduct, a failure to come forward and either identify the perpetrators, or explain why they could not do so, constitutes derivative misconduct.

Facts:

The employer's business is based in Howick in the KZN midlands. During August 2012, employees went on a protected strike over a wage dispute declared by Numsa, their Union. The strike was characterised by violent confrontations between the strikers and supervisors in a dangerously volatile situation, and serious acts of misconduct occurred involving attacks on vehicles and placing the Company's premises under siege. An interdict was obtained restricting the striking employees from being within 50 metres of the access road to the Company's premises and interdicting the unlawful conduct. Despite this, it continued for over a month.

Right from the commencement of the strike, management called upon the Union and employees to come forward with information about the identity of the perpetrators of the misconduct and the violence. After the strike, employees continued to fail to comply with instructions to identity the perpetrators. Of a total of 107 striking employees, 29 employees were subsequently dismissed for specific acts of misconduct identified as well as derivative misconduct, and the remaining 78 employees were dismissed for derivative misconduct only. Employees dismissed for derivative misconduct referred an unfair dismissal dispute to arbitration at the CCMA.

The arbitrator found that the dismissal of 42 of the striking employees was both substantively and procedurally fair. Whilst some of these employees had been found guilty of direct misconduct, a number of these employees who were found to have been fairly dismissed were dismissed for derivative misconduct only. These employees had all been proved as having been present when the acts of misconduct occurred.

The arbitrator drew a distinction between those employees who, based on the evidence led, had been found to be present during the misconduct and those in respect of whom no such direct evidence existed. The arbitrator found that the dismissal of the balance of 65 employees for derivative misconduct was unfair, on the basis that there was no evidence that showed they were specifically identified as having been present during the misconduct. Dissatisfied with the award, the employer took it on review to the Labour Court.

The Union opposed the review application on the basis that there was insufficient evidence to show that the 65 employees committed any wrongdoing or were even present during the misconduct. As such, the employer's claim that it could no longer trust these employees was irrational and irrelevant in the absence of any evidence of wrongdoing on the part of the employees.

The Labour Court did not agree with the Union's submissions, and found that the Union's approach ignores the fact that the nature of the derivative misconduct lies in the failure of the striking employees to come forward and assist the employer to identify the perpetrators. Whilst these employees were not specifically identified as having been present during the misconduct, the LC came to the conclusion that this could be inferred from the facts of this case. The LC was satisfied that the only reasonable inference that could be drawn from the evidence was that the employees were present during the strike and the misconduct: if they weren't present or had no information regarding the perpetrators, they would have utilised the opportunities afforded them to come forward and say so, and yet they did not.

Under such circumstances, the LC found that the employees could not hide behind the right to remain silent, given that none of them chose to give evidence at the internal hearings or at the arbitration. There was in these circumstances a positive duty on these employees to come forward and either identify the perpetrators, or explain why they could not do so - for example, by saying they weren't there.

The LC concluded that the employees were guilty of derivative misconduct by failing to come forward and either -

- exonerate themselves by explaining they were not present and could not identify the perpetrators; or
- identify the perpetrators who committed the misconduct.

The LC commented that whilst the right to remain silent is sacrosanct in criminal matters where accused persons are presumed to innocent until found guilty, this presumption of innocence does not apply in these proceedings. The LC found that by failing to come forward and provide an explanation in circumstances in which it could be inferred they were present during the misconduct, they had breached the employment trust relationship and their dismissals were acordingly fair. On the basis the arbitrator's award was overturned.

Extract from the judgment:

(Gush J)

[41]   The third respondent concluded that the applicant bore the onus of "proving on a balance of probabilities that the [employees] knew who the perpetrators of the principal misconduct were and that they failed to disclose such information to the [applicants]".

[42]   This conclusion ignores the fact, as dealt with above, that the derivative misconduct the applicants relied upon related, in addition to failing to identify the perpetrators, to a breach of trust arising from the failure to come forward. Either to identify the perpetrators or exonerate themselves.

.........................

[48]   In analysing the evidence it is apparent that the third respondent in determining whether the applicants had discharged the onus, lost sight in the final analysis of that aspect of the derivative misconduct for which the employees were found guilty and dismissed. The third respondent failed to consider firstly whether a reasonable inference could be drawn that the respondent employees were present and secondly if such an inference could be drawn whether the failure of the employees to come forward and provide either an explanation exonerating themselves or providing the names of the perpetrators constituted derivative misconduct.

........................

[54]   It is abundantly clear from the record and the evidence as summarised and analysed by the third respondent that the applicants themselves regarded the failure of the employees to come forward with information relating to the perpetrators of principal misconduct or to exonerate themselves constituted a breach of the relationship of trust and confidence.

[55]   In analysing the evidence and considering the various incidents the third respondent appears to concentrate only on the simple issue of whether the applicants were able to identify who was present or not. This approach is inexorably linked to the third respondent's failure to consider whether it could be inferred that the respondent employees were present and "through their silence make themselves guilty of a derivative violation of trust and confidence".

[56]   The third respondent despite referring to the inference to be drawn from the evidence only relies on a consideration of whether the employees were identified by the witnesses. The third respondent does not appear to consider whether the evidence adduced by the applicants was sufficient to create an inference that the respondent employees were all on strike and present.

[57]   The third respondent finds that the parties were subject to a picketing rules agreement; that it was proved by the evidence of the first respondent's Mr Sibisi that it had been conveyed to the respondent employees that the applicants' required information regarding the perpetrators of the misconduct and that they should provide such information. The third respondent also finds that the defence raised and relied upon by the respondents at the time of the misconduct and the arbitration was to deny the misconduct.

[58]   The record reflects that it was not the respondents' case that the respondent employees were neither on strike nor present during the acts of misconduct. The respondent employees simply remained silent. The witnesses who gave evidence on behalf of the respondents simply denied any misconduct, breach of the strike and picketing rules or the interdict.

[59]   It is trite that the arbitration was a hearing de novo. The respondent employees had been afforded an opportunity to come forward before they were dismissed. This opportunity was again available to them at the arbitration. In the face of the extensive evidence relating to the presence of the striking employees and of the serious misconduct the first respondent and the employees elected deliberately not to give evidence or an explanation. (Besides Duma and Grantham whose evidence was simply to the effect that no misconduct took place, which evidence was rejected by the third respondent.) The right to remain silent is sacrosanct in criminal matters where accused persons are presumed to innocent until found guilty. This is not a criminal investigation and the presumption of innocence does not apply.

[60]   The issue in question in this matter is whether the respondent employees were entitled despite the nature of the employment relationship to passively remain silent in the face of an opportunity to assist in the investigation. The Courts have repeatedly stressed the nature and essence of the employment relationship which is based on trust and good faith. The response by the respondent employees in this matter particularly taking into account the evidence adduced by the applicants to simply remain silent was a breach of that trust.

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[76]   I am satisfied that the only reasonable and plausible inference that can be drawn from the evidence is that the respondent employees were present during the strike and accordingly during the misconduct. If they weren't present or had no information regarding the perpetrators they would have said so. They, despite the opportunities afforded them, did not.

[77]   It is entirely reasonable for an employer to expect protected industrial action to be accompanied by orderly conduct by those employees who have embarked on the industrial action. This is particularly so in circumstances where the employer has not only entered into a picketing rules agreement with the representative trade union regulating the conduct of striking employees but has as a result of the conduct of the employees been forced to obtain an interdict restraining the striking employees from committing misconduct. That strikes are often visited with violence and misconduct does not justify such acts.

[78]   Despite the fact that tension often runs high during industrial action the level of misconduct and violence and the duration thereof in this matter reinforces the necessity for employers to be able on to rely on the "duty of good faith towards the employer" and that the employee "breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined." This duty must extend to the opportunity to exonerate oneself. Specifically when the employer has repeatedly requested information regarding the perpetrators of the misconduct and the striking employees are well aware of this.

[79]   In the circumstances of this matter and in particular given the serious nature of the misconduct suggests the failure to provide an explanation constituted misconduct and justified the disciplinary action. The evidence adduced by the applicants created an inference that the respondent employees were present Accordingly, as employees of the applicants, the "essentials of trust and confidence" demanded that they do more than simply remain silent. Their failure to come forward and provide an answer constituted derivative misconduct. The third respondent did not consider whether such an inference could be drawn and in so doing did not take into account material that was properly placed before him. This constitutes a valid ground of review.

[80]  

[81]   As far as the sanction of dismissal is concerned there was no suggestion by the first respondent the sanction of dismissal for derivative misconduct was inappropriate. The respondents relied solely on the respondent employees not being identified.