Can you fire an entire group of employees for misconduct?
You suspect a group of employees is guilty of misconduct. But you can't identify all of them or prove whoʼs guilty. You donʼt want troublemakers affecting your workplace productivity and costing you in lost time and production! Can you dismiss everyone in the group?
You can, by using derivative misconduct...
But, what is derivative misconduct?
In the case of Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) ('Leeson Motors'), the Labour Appeal Court (LAC) introduced the concept of derivative misconduct into labour law.
But what is derivative misconduct? Well, it refers to dismissing a whole group of employees because they won't help you identify parties of misconduct. When they don't help, they align themselves with the guilty employees. And this violates your relationship of trust.
Find out how you can use this to dismiss a group of employees who weren't directly involved in the misconduct below.
Know the difference between insubordination, gross insubordination and insolence
There's a fine line between insubordination, gross insubordination and insolence of an employee. Do you know the difference? How would you discipline an employee in each instance? If you get it wrong you could lose at the CCMA!
Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) ('Leeson Motors')
The facts of the case:
The panel beating shop dismissed a shop steward for gross negligence. Because of this, other employees committed acts of sabotage against them. They also damaged vehicles that were in for repair.
Leeson Motors couldn't identify the exact culprits.
It asked the National Union of Metal Workers (NUMSA) and the South African Police Service (SAPS) to intervene.
NUMSA didn't want to get involved, and the SAPS wouldn't help either.
The employer issued an ultimatum to its employees. It said they would dismiss all employees if there were any more incidents and the culprits couldn't be identified.
Two days later another act of deliberate damage took place.
Leeson Motors gave its employees twenty minutes to give the names of the culprits. None of them would give information.
The company dismissed all the employees.
The employer held talks with NUMSA. It said it would re-employ the employees if they identified the culprits.
Keep reading to find out what the court had to say...
Would you know how to chair a successful hearing when disciplining an employee for misconduct?
To hold a 100% legally compliant hearing, you have to fulfil all your chairman duties...
Not fulfilling all your duties as a chairman can spell disaster. Not only could it be the reason your company lands up at the CCMA, but you might even have to reinstate the guilty employee!
Find out more here...
What did the Court say about this?
The LAC held that the employer was justified in dismissing the employees even though it couldn't identify the perpetrators.
It decided this for two reasons;
1. Operational grounds.
Where you know one of only two workers is planning major and irreversible destructive action but you can't identify which one, you'll have to dismiss an innocent employee to protect your business.
There's 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 for you?
Your employees have a duty to assist you to identify perpetrators of misconduct in your workplace. They breach the trust relationship inherent in your employment relationship if they don't do this.
You can charge and dismiss an employee for the principal misconduct even if you can't identify the perpetrators, and if your employees refuse to assist you in identifying them.
To justify your dismissal, you must prove on a balance of probabilities that:
Employees in the workplace committed the principal misconduct;
You're unable to identify the culprits;
Your 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 you in identifying the perpetrators of the misconduct.
Once you prove the above on a balance of probabilities, the group of employees must show they didn't participate in or know about the misconduct.
If they can't, or won't, you can assume they were either involved in the misconduct or were associated with it. And then you can dismiss based on the breach of the trust relationship.