A South African employee was dismissed for failing to report their colleague’s ‘suspicious conduct’ relating to missing money. The dismissal was found to be substantially fair by the Commission for Conciliation, Mediation and Arbitration (CCMA).
The failure of the employee to inform an employer of their business interests being improperly undermined constituted “derivative misconduct”, which is a dismissible offence.
Facts
The issue was considered by the CCMA in the case of Ncukana/AF Brands (Pty) Ltd.The employer conducted business in the retail sector.
A representative of the employer had discovered that money had gone missing due to a shortfall amount being deposited at a bank at one of their retail locations. The missing money was ultimately found in a bank bag in a drop safe.
The colleague of the employee in question admitted that she placed the unregistered money bag in the drop safe and had informed the employee that she had done so. The employee failed to report her colleague’s suspicious conduct to management – and as a result, was charged with derivative misconduct, which lead to her dismissal.
The employee, however, denied having any knowledge of the conduct to a representative of the employer, contending that her dismissal was substantively unfair.
Findings by the court
The CCMA had to determine whether there had been an obligation on the part of the employee to disclose the knowledge of their colleague’s behaviour.
The commissioner found that the employee did have an obligation to inform the employer of the suspicious conduct that she was aware of.
The CCMA was guided by a ruling of the Labour Court in Dunlop Mixing and Technical Services and others v NUMSA obo Nganenzi and others.
In the Dunlop case, the court held that an employee is implicitly bound by a duty of good faith towards an employer and that remaining silent about business interests being improperly undermined was in breach of this duty.
In this latest case, the employee’s refusal to disclose her knowledge of the matter amounted to an aggravating factor in favour of her dismissal. The employee didn’t have to have common purpose with the colleague for it to be considered a derivative offence.
The following was highlighted as the litmus test for these kinds of dismissals:
1. The information or knowledge that the employee fails to disclose must be “actual knowledge”.
2. Non-disclosure must be deliberate;
3. The seriousness of the primary misconduct, and the rank of the employee who fails to disclose it, affects the gravity of the nondisclosure;
4. A request to disclose information need not be made for the duty to disclose to be triggered – but if a request is made and is refused, culpability is aggravated; and
5. The employee need not have a common purpose with the perpetrator.
The case showed that employees hold a responsibility to act honestly even if it means such honesty exposes the misconduct of another employee.
By Jacques van Wyk, Andre van Heerden, Kelly Sease and Danelle Plaatjies
