in the constitutional court of south africa - SAFLII

2018.HOA.NUMSA.Dunlop.Concourt.231118 Final

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT CASE NO: 202/18

LAC CASE NO: DA16/2016

LC CASE NO: 0345/2014

In the matter between:

NATIONAL UNION OF METAL WORKERS OF SOUTH AFRICA ("NUMSA") obo KHANYILE NGANEZI AND OTHERS Applicant/ Appellant

and

DUNLOP MIXING AND TECHNICAL SERVICE (PTY) LTD First Respondent DUNLOP BELTING PRODUCTS (PTY) LTD Second Respondent DUNLOP INDUSTRIAL HOSE (PTY) LTD Third Respondent COMMISSION FOR RECONCILIATION MEDIATION AND ARBITRATION Fourth Respondent COMMISSIONER ALMEIRO DEYZEL N.O. Fifth Respondent

APPLICANT / APPELLANT’S TABLE OF CONTENTS

OVERVIEW ........................................................................................................... 3

Nature of proceedings ..................................................................................... 3

THE PARTIES ....................................................................................................... 5

NATURE OF THE DISPUTE................................................................................. 6

LEAVE TO APPEAL ........................................................................................... 11

Constitutional Issue ...................................................................................... 11


Arguable point of law of general public importance .................................. 13

Prospects of Success ................................................................................... 14

Leave to appeal should be granted.............................................................. 15

NATURE OF THE ALLEGED MISCONDUCT ................................................... 16

Derivative Misconduct ................................................................................... 16

The nature of the duty to disclose ............................................................... 18

The evidential issues ..................................................................................... 27

THE ONUS AND WHETHER IT WAS REASONABLE FOR THE CCMA

COMMISSIONER TO FIND THAT IT HAD NOT BEEN DISCHARGED. ........... 30

The logic of the numbers .............................................................................. 33

Speculation or inference ............................................................................... 39

CAN THE INFERENCE DRAWN BY THE LABOUR COURT AND THE

MAJORITY OF THE LAC BE PROPERLY DRAWN FROM THE EVIDENCE? 41

COLLECTIVE GUILT .......................................................................................... 49

RELIEF ................................................................................................................ 50



CCT CASE NO: 202/18

LAC CASE NO: DA16/2016

LC CASE NO: 0345/2014


NATIONAL UNION OF METAL WORKERS OF SOUTH AFRICA ("NUMSA") obo KHANYILE NGANEZI AND OTHERS Applicant/ Appellant

and

DUNLOP MIXING AND TECHNICAL SERVICE (PTY) LTD First Respondent DUNLOP BELTING PRODUCTS (PTY) LTD Second Respondent DUNLOP INDUSTRIAL HOSE (PTY) LTD Third Respondent COMMISSION FOR RECONCILIATION MEDIATION AND ARBITRATION Fourth Respondent COMMISSIONER ALMEIRO DEYZEL N.O. Fifth Respondent ________________________________________________________________

APPLICANT/APPELLANT’S SUBMISSIONS

OVERVIEW

Nature of proceedings

1. This is an application by NUMSA as applicant on behalf of sixty-five

of its members (“the sixty-five”) for leave to appeal to the


Constitutional Court against the judgment and order of the Labour

Appeal Court (“the LAC”) which was delivered on 17 July 2018.1 If

leave is granted, NUMSA, as the Appellant, appeals against the

whole of the said judgment and order of the LAC2.

2. The LAC dismissed an appeal from the Labour Court, which had

reviewed and set aside the arbitration award of the Fifth

Respondent sitting as an arbitrator in the CCMA (“the CCMA

commissioner”) exercising its unfair dismissal jurisdiction under the

Labour Relations Act, 1995 (“the LRA”). The CCMA commissioner

awarded reinstatement following upon a finding by him that the

dismissals of the sixty-five were unfair3.

3. In the present appeal the Appellant seeks an order upholding the

appeal and setting aside the orders of the LAC and the Labour

Court and restoring the CCMA award.

1 Application for Leave to Appeal, vol 25, p2435

2 In accordance with the directions of the Chief Justice para 3, vol 26, p2534

3 CCMA Commissioner’s Award vol 24, p2300 at 2329


THE PARTIES

4. The Applicant / Appellant is the National Union of Metalworkers of

South Africa (NUMSA), a trade union duly registered in terms of

Chapter VI of the Labour Relations Act 66 of 1995 which in these

proceedings acts on behalf of sixty-five of its members, who are

former employees of one or the other of the First, Second and Third

Respondents, who were reinstated in their employment by the

award of the Fifth Respondent in the CCMA. The names of the

persons in question and the identification of the particular

Respondent that employed them are set out in the award of the Fifth

Respondent.

5. The First, Second and Third Respondents are associated

companies incorporated according to the company laws of the

Republic of South Africa and they conduct business in the industrial

rubber hosing and belting sector from adjacent factories at premises

at Induna Mills Road, Howick, Kwa-Zulu Natal. The First, Second

and Third Respondents were collectively referred to as “Dunlop” in

the judgment of the LAC and that term or the word “employer” are


used in these submissions to refer to the three respondents in

question.

6. The Fourth Respondent (“the CCMA”) and the Fifth Respondent

(“the CCMA Commissioner”) abide the decision of the Court and

have not participated in the litigation.

NATURE OF THE DISPUTE

7. It is common cause that the sixty-five together with very many

others, in total one hundred and sixty three workers, participated in

a protected strike that began on 22 August 2012 and ended on

26 September 2012. The strike ended when all the striking workers

were dismissed. NUMSA is acting on behalf of sixty-five of the

dismissed workers in the present proceedings.

8. During the period of the strike there were various incidents of a

violent nature, emotionally described in the judgment of Sutherland

JA in the LAC as acts of barbarism. The violent conduct was

perpetrated by some of the striking workers making up groups of

striking workers of various sizes at various times and places but on


the evidence never by the entire workforce or in the presence of the

entire workforce that was on strike. Amongst those who formed part

of the striking workers and who were included in the groupings that

gathered at times (including when there was violence) were persons

who were not employed by Dunlop or who were not permanent

employees of Dunlop and who were not members of NUMSA. They

are referred to in the CCMA Commissioner’s award as employees of

Rema Tip Top and some contract labourers.4

9. The strike endured over about a month and during this period there

were multiple acts of violent behaviour. Those who were identified

as perpetrators or who were identified as being present on the

scene where violence occurred by evidence led before the CCMA

commissioner were not successful in challenging the fairness of

their dismissals in the CCMA.

4 Paragraph 90, Volume 24, page 2316. The total number was 163 (excluding those Rema Tip

Top employees and the contract labourers who were also present). Of these 107 were

members of NUMSA per the Respondents schedules Vol 1 pages 44-56.


10. The sixty-five, namely the persons to whom the present proceedings

relate were not identified or even ever mentioned directly in the

evidence in the proceedings before the CCMA.

11. There is no direct evidence that they were present on any of the

occasions when the violent acts occurred. There is no direct

evidence either that they had actual knowledge of who any of the

perpetrators were or were able to identify any perpetrator.

12. The only direct evidence that related to each of the sixty-five

individually was the common cause fact that they were amongst a

body of Dunlop workers who participated in the protected strike

action over the month that it endured.

13. The sixty-five were dismissed as part of the entire striking workforce

that was dismissed.

14. The CCMA commissioner found that the allegations of misconduct

levelled against each of the individuals who make up the sixty-five

had not been proved in the evidence before him. It followed from

this finding that the employer who, in order to succeed must prove


the dismissal of each of the dismissed employees to be fair5, had

not done so in respect of the sixty-five. He accordingly found the

dismissals to be unfair and awarded them reinstatement6.

15. The CCMA Commissioner’s award was set aside by the labour

court7 on the basis that the decision was one no reasonable

arbitrator could make on the material before him. Although it is not

absolutely clear it seems that the finding of the Labour Court was:

(a) that there was circumstantial evidence that proved on a balance of

probabilities that the employees in question had actual knowledge;

and

(b) the failure of the CCMA Commissioner to have regard to such

circumstantial evidence and draw interferences therefrom was

unreasonable8.

5 S192(2) of the LRA

6 Award vol 24, p2329

7 Labour Court Judgment, Vol 25, p2396-2419

8 It is on this basis that the LAC approached the matter and agreed with the judgment of the

Labour Court.


16. The Labour Court judgment also appears to find9 (a) that the sixty-

five had an obligation to come forward to exonerate themselves;

and (b) that failing to do this constituted misconduct in itself; and (c)

that the award was unreasonable in failing to recognise the

misconduct in question.

17. The labour court order was upheld by the majority of LAC.

18. The Appellant contends that the Labour Court and LAC majority

were wrong in their respective approaches and in finding that the

award of the CCMA commissioner was unreasonable. It is

contended that the CCMA commissioner’s finding is a factual finding

and legal conclusion that a reasonable commissioner could have

arrived at on the material before him or her, properly applying the

onus provisions set out in s192(2) of the LRA and that it satisfied the

Sidumo test10.

9 Labour Court Judgment, vol 25, paras 42, p2405. Coppin JA in the LAC does not read the

judgment to say this, but holds that if it does it is wrong. LAC judgment para 55. p2497

10 The test for review was stated in Sidumo and Another v Rustenburg Platinum Mines Ltd and

Others 2008 (2) SA 24 (CC) para 110:

'To summarise, Carephone held that s 145 of the Labour Relations Act was suffused by the

then constitutional standard that the outcome of an administrative decision should be justifiable


LEAVE TO APPEAL

Constitutional Issue

19. The Applicant seeks to enforce the right of the sixty-five to fair

labour practices enshrined in s23(1) of the Constitution of the

Republic of South Africa (“the Constitution”) as codified in s185(1)(a)

of the LRA. The Applicant alleges that the decision of the LAC

infringed the rights of workers to fair labour practices. This court has

held that such an allegation raises a constitutional matter11.

20. The Constitutional Court accordingly has jurisdiction because the

issue before it is a constitutional matter involving as it does the

alleged unfair dismissals of each of the sixty-five which, on behalf of

in relation to the reasons given for it. The better approach is that s 145 is now suffused by the

constitutional standard of reasonableness. That standard is the one explained in Bato Star: [i]s

the decision reached by the commissioner one that a reasonable decision-maker could not

reach? Applying it will give effect not only to the constitutional right to fair labour practices, but

also to the right to administrative action which is lawful, reasonable and procedurally fair.'

In Rustenburg Platinum Mine v SAEWA OBO Bester and others 2018 (5) SA 78 (CC) this court

pointed out in footnote 12 that the test is whether the decision reached was one which a

reasonable decision-maker could not have reached. – emphasising that the word is “could” not

“would”.

11 Western Cape Workers Association v Halgang Properties CC CCT44/03; 2004(3) BCLR 237

(CC) paragraph 9


each of the sixty-five, the Applicant seeks to set aside as unfair by

exercising the rights conferred and the processes enacted to protect

those rights as embodied in the LRA.

21. The issue in dispute also concerns the right of workers to strike

enshrined in s23(2)(c) of the Constitution12, which by reason of

s167(7) of the Constitution is a constitutional matter as it involves

the indirect protection and enforcement of a right enshrined in the

Constitution.

22. The issues in dispute involve a determination of the proper

application of s192(2) of the LRA which creates the rebuttable

presumption of unfairness once a dismissal is established and

12 The Sutherland JA judgment stated that the matter was not about the right to strike

constitutionally guaranteed in Section 23(2)(c) of Chapter 2 of the Constitution. It is submitted

that this is too limited a view because the approach of the majority of the LAC to the inference

to be drawn from failing to come forward to exonerate oneself must have an indirect impact on

the constitutionally protected right to strike, which is significantly limited in respect of the

category of persons (probably the majority) who, while wishing to participate peacefully and

appropriately in strike action, are at the same time unwilling or afraid to be or to be perceived by

the collective as informers. They would reasonably perceive that their safety or social status

may be impacted if they come forward even if it is only to explain that they have no material

information to provide. Is such a person doomed to be painted with the same brush as violent

co-workers if he or she decides that it is prudent not to do so?


requires the employer to prove the dismissals of each individual

worker making up the sixty-five is fair.13

Arguable point of law of general public importance

23. The dispute involves a determination of how the onus should

operate in the kind of misconduct inelegantly categorised under the

term “derivative misconduct” by the Labour Courts in the context of

industrial action which seems to have taken on a life of its own.

What is actually involved is a determination of the nature of the duty

in a strike context, arising out of the good faith element inherent in

an employment relationship14 in the situation where a worker can be

dismissed for not providing the employer with information

13 The interpretation and application of provisions of the LRA gives rise to a constitutional issue

because the LRA is enacted to give effect to the rights conferred by s23 of the Constitution. See

for example National Education Health & Allied Workers Union v University of Cape Town and

Others 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) at para 14

14 This involves a determination of what is involved, whether there are reciprocal good faith

obligations and in the context of violence in a strike context whether this means that before an

employer can expect a worker to come forward to implicate wrongdoers it must create an

environment that is safe and confidential in order to protect the worker from possible reprisals

from the violent element.


concerning the misconduct of others that may seriously impact on

the employer’s business or rights.

24. The legal issues are of considerable public interest, will potentially

affect all unionised workers in the country and has given rise to

academic debate.

25. It is a point of law of sufficient public importance for this court to

hear the matter and for it therefore to grant leave to appeal to

enable the question to be decided, a question on which the three

judges in the LAC were unable to agree.

Prospects of Success

26. The appeal also involves the determination of the question as to the

correctness of the approach of the Labour Court, or that set out in

the judgment of Sutherland JA or in the judgment of Coppin JA in

the LAC, which are similar with regard to the inferences, if any, to be

drawn in the context of the strike in this case, where some of the

striking workers, but certainly not all, were violent and caused harm

to persons or property.


27. It is the Applicant’s case as elaborated upon below:

(a) that the inferences drawn by the majority of the LAC are wrong on

the facts and the application of the onus; and

(b) that the award of the CCMA commissioner was one that a

reasonable commissioner could make, which therefore should not

have been set aside on review. It follows that the Applicant has

good prospects of success.

Leave to appeal should be granted

28. In the circumstances it is submitted that this Court should grant the

Applicant leave to appeal to the Constitutional Court.


NATURE OF THE ALLEGED MISCONDUCT

Derivative Misconduct

29. The matter concerns, primarily, the concept of “derivative

misconduct” a label coined from the judgment of Cameron JA in

Chauke and Others v Lee Service Station CC T/S Leeson Motors

(1998 19 ILJ 1441 LAC)15 and how it is to be applied in the context

of strike action, where there is serious misconduct by some persons

engaged in the strike action. The question that arises is whether

those not guilty of the principal act are nonetheless guilty of a

derivative form of misconduct and the circumstances in which that

can arise.

30. The term derivative misconduct has been used to describe the form

of misconduct that involves the breaching of the good faith element

inherent in the employer/employee relationship, which in a given

factual context may require of the employee to come forward to

inform the employer of the misconduct and to identify the

15 The Sutherland JA judgment deals with the history of the development of “derivative

misconduct in paras 21-28 of the LAC judgment.


perpetrators thereof. When this is not done, the employee is guilty

of so-called derivative misconduct. It is submitted that the

description of this breach of the good faith element in the

employment relationship, which is fact and context dependent and,

it is submitted, reciprocal, does not need its own special title, which

rather than provide clarity of thinking only serves to confuse.

31. There are passages in the Labour Court judgment that expand the

ambit of “derivative misconduct” to create an obligation on striking

workers who are present, or assumed to have been present

because they are on strike, when there are acts of violence

committed by others, to come forward to exonerate themselves

even if they have no material information to provide. A failure to do

this according to the passages in the Labour Court judgment

constitutes a form of derivative misconduct.16

16 Labour Court Judgment para 42


The nature of the duty to disclose

32. It is submitted that the treatment of this issue by the majority in the

LAC constitutes a material misdirection. The opinion of the majority

that there is a general duty to disclose in our law is, it is submitted,

incorrect. The approach of the minority judgment that the particular

facts and circumstances of each case must be considered before

such a duty is held to arise is supported as the correct, balanced

and fair approach.

33. Neither of the two initial LAC cases which develop the concept of

derivative misconduct, namely, FAWU and Others v ABI17 (1994) or

Chauke18 (1998) support the basis and content of the duty as

framed by the majority in the LAC.

(a) Per Nugent JA in FAWU:

“In the field of industrial relations, it may be that policy

considerations require more of an employee than that he

17 (1994) 15 ILJ 1057 LAC

18 Supra


merely remain passive in circumstances like the present

and that his failure to assist in an investigation of this sort

may in itself justify disciplinary action.” (emphasis added)

(b) Cameron JA in Chauke:

“The first is that a worker in the group which includes the

perpetrators may be under a duty to assist management in

bringing the guilty to book. Where a worker has or may

reasonably be supposed to have information concerning

the guilty, his or her failure to come forward with the

information may itself amount to misconduct.” (emphasis

added)

34. Neither judgment necessarily supports the view that the “duty of

good faith” imposes a duty on an employee to disclose in all the

circumstances where they have knowledge of misconduct of other

employees. The 1895 Queens Bench decision of Robb v Green is

generally cited as the origin of the concept of good faith in the

labour field.

“…I have a very decided opinion that, in the absence of

any stipulation to the contrary, there is involved in every

contract of service an implied obligation, call it by what

name you will, on the servant that he shall perform his


duty, especially in these essential respects, namely that he

shall honestly and faithfully serve his master; that he shall

not abuse his confidence in matters appertaining to his

service, and that he shall, by all reasonable means in his

power, protect his master’s interests in respect to matters

confided to him in the course of his service”.19

35. The reference to “matters confided” in the above dictum of Hawkins

J related to the employer’s confidential information of which the

employee came to have knowledge. There is no general duty to

inform the employer of acts of misconduct by other employees in

English law, from which our law on the issue is derived. As stated by

Lord Justice Green in Swain v West (Butchers) Limited20 (in relation

to the proposition that no duty to disclose existed)

“I am unable to accept such a proposition. Whether there

is such a duty or not must depend on the circumstances

of each particular case.”

19 Per Hawkins J, (1895) 2 QB1 at pages 10 to 11 cited inter alia in Premier Medical & Industrial

Equipment v Winkler 1971 (3) SA 866 (W) at 867-8

20 (1936) 3 All ER 261, citing Bell v Lever Brothers Limited (1932) AC 161


(Confirmed by the Court of Appeals in Sybron Corp and Another v

Rochem Ltd and Others21)

36. Canadian law follows English law in this regard. As stated by

McFarlane JA in International Woodworkers of America v Sooke

Forest Products Limited, in the British Columbia Court of Appeal:

“I think the learned Judge refrained rightly from any

decision as to the general existence or nature of the

duty, if any, upon employees to disclose to the

employers information regarding improper conduct of

other employees. The existence and nature of such duty

must depend upon the circumstances of the individual

case.”22 (Referring to Swain v West)

37. It is submitted that the context dependent approach of England and

Canada and Nugent JA and Cameron JA finds strong analogy in the

South African Law of delict where an omission to disclose

information may be wrongful depending on the facts of each matter

and whether criteria of public or legal policy consistent with

21 (1983) 2 All ER 707

22 1968 Carswell EC 289, (1968) WLAC 243, at paragraph 7, followed in Air Canada v IAM,

1979 Carswell Ont 1031 (1979) OLAA number 133, 24 LAC (2d) 373


constitutional norms indicates a legal duty to disclose such

information.23

38. It is further submitted that the imposition of a general duty to

disclose in the judgment of Sutherland JA, erroneously relies on a

one-sided duty of good faith. In both English and South African law

the concept has developed significantly in recent years. While the

decisions of the Labour Court and LAC in this matter (and the cases

cited therein) refer to the duty of good faith as being one of “trust

and confidence” which the employee owes to the employer, English

law has accepted that, in modern times, the equation is not one

sided and a reciprocal duty is owed by the employer to the

employee. As stated by Lord Steyn in Malik v Bank of Credit and

Commerce International SA24

“The major importance of the implied duty of trust and

confidence lies in its impact on the obligations of the

employer… The implied obligation as formulated is apt

to cover the great diversity of situations in which a

23 Brand JA in Trustees, Two Oceans Aquarium v Kantey and Templar (Pty) Limited 2006 3 SA

138 SCA

24 1998(AC21) at 46


balance has to be struck between an employer’s interest

in managing his business as he sees fit and the

employees interest in not being unfairly and improperly

exploited… I regard the emergence of the implied

obligation of mutual trust and confidence as a sound

development.” (emphasis added)

39. This English law approach as to the reciprocal nature of the duty is

accepted in our law25.

40. It is submitted that the reciprocal nature of the duty has important

ramifications in the context of attempting to develop a policy or

identify the ambit of a duty to disclose in circumstances of violent

strike misconduct which carries the associated risk of retribution

against informants. Employers are required to recognise the

interests of employees as much as the other way around.26

25 Council for Scientific and Industrial Research v Fijen 1996 (2) SA 1A at page 10; Murray v

Minister of Defence (2008) 29 ILJ 1369 SCA, Mogothle v Premier of the North West Province

and Another (2009) 30 ILJ 605 LC (and the cases cited therein at paragraphs 21 to 24).

26 See the discussion in The Implied Term of Trust and Confidence in South African Labour

Law, Craig Bosch (2006) 27 ILJ 28.


41. It is submitted that even without the legal developments referred to

above, in light of the constitutional right to fair labour practices and

the stated purpose of the LRA to advance social justice, there can

be no other conclusion than that the duty of good faith or “trust and

confidence” is owed mutually between employers and employees.

(The concept of social justice having played a significant part in the

development of the English common law.)

42. It is accordingly submitted that, on the basis of the aforegoing,

whether a duty on the employees in this matter to disclose any

information relating to perpetrators of misconduct arose, at all, is

dependent on an examination of:

(a) the particular facts and circumstances of the matter (including the

fact that the employees were on a protected strike and lawfully

opposing the interests of the employer);

(b) the reciprocal duty of good faith and fair dealings between the

employers and the employees; and


(c) the historic and socio-economic context and other factors referred to

in the dissenting judgment of Savage AJA at paragraphs 101 to

10427.

43. The reciprocal nature of the duty of good faith finds expression in

the following dictum of Savage AJA:

“The ‘”policy considerations” referred to in FAWU which

require consideration in determining the scope of an

employee’s duty to assist an employer protect its

legitimate interests must, therefore, in my view, reflect

appropriate regard for the position of both parties in the

relationship. This would include an assessment of the

appreciable risks which may arise when an employee in

speaking out, in naming perpetrators or for purposes of

exoneration and the dangers inherent which may arise in

doing so”28.

44. It is accordingly submitted that:

27 Volume 26, pages 2517 to 2518

28 The reference to “FAWU” being to the dictum of Nugent JA cited above


(a) Sutherland JA and Coppin JA were incorrect in finding that the sixty-

five were under a duty to disclose per se and without having first

considered the full context and especially the real or reasonably

perceived dangers inherent in doing so ; and

(b) in circumstances where acting in their employers’ interests could

reasonably pose a realistic risk to the employees’ own safety, no

duty to disclose arises.

45. Alternatively,

(a) such duty could not have arisen unless the employer created an

environment in which strikers with information to provide could do so

in circumstances where their identity was protected and any

possibility of consequent victimisation eliminated; and

(b) the bare demand for information directed to the striking workers’

collective bargaining agent, the Appellant, was inappropriate and

insufficient in the light of the high levels of violence, since it failed to

address the safety of the workers who would come forward if it was

safe to do so.


46. It is further submitted that a safe and confidential mechanism had to

be provided before the employees were dismissed for failing to

make disclosures. Until that was done no duty to put oneself in

harm’s way arose.

47. On the above reasoning it is submitted that the LAC erroneously

concluded that the only question that had to be answered was

whether the evidence proved that each of the sixty-five had actual

knowledge of the perpetrators of violence and deliberately withheld

that information from their employer. The LAC should instead have

decided before asking itself that question, whether the

circumstances were such that a duty to disclose arose.

The evidential issues

48. On the approach adopted by the majority of the LAC all the

employer has to prove to is:

(a) that the worker in question was on strike;


(b) that misconduct occurred during the strike perpetrated by a

participant or participants in the strike. Having assumed that once

participation was proved and violence was proved, on the approach

of the said judgments, it then followed axiomatically that the worker

in question was both present when there were violent confrontations

and witnessed who the perpetrators of such violence were29. All

that then remains on this approach is to prove that the worker did

not come forward with information. It is submitted that this approach

is wrong.

49. The labour court expanded what was hitherto a duty to disclose, to

now include a duty on a worker to come forward to exonerate

himself or herself which, if not done, would render the worker guilty

of derivative misconduct. The Labour Court judgment finds that this

duty exists even if there is no material information to provide, as is

29 This is so even though Sutherland JA, relying on Western Platinum Refinery Ltd v Hlelbela &

others (2015) 36 ILJ 2280 (LAC) at paras 10-11, identifies the fact that the undisclosed

knowledge must be actual, not imputed or constructive knowledge of the wrongdoing and even

though proof of the misconduct can emerge by inference from the evidence adduced, it remains

necessary to prove actual knowledge. He finds that on policy grounds the gravamen of

derivative misconduct is limited to deliberate non-disclosure.


implicit in that it is a failure to come forward to exonerate oneself

that constitutes the misconduct. The Labour Court found that the

CCMA commissioner was unreasonable in finding that the employer

had only to prove that the worker in question actually knew who the

perpetrators were and failed to disclose that information. He should

also have asked whether the dismissed worker had come forward to

exonerate himself or herself because failing to do so, even if he or

she has no material information to impart, constitutes derivative

misconduct30

50. It is submitted that on the present set of facts what had to be proved

was that the dismissed worker in question had actual knowledge of

the identify of perpetrators of the misconduct which that worker

deliberately failed to disclose and that the circumstances were such

that it was reasonable to expect him or her to make such a

30 See paras 40-42 of the Labour Court judgment dealing with para 65 of the award.

Coppin JA finds that on a reading the Labour Court judgment as a whole the learned judge did

not impose such a requirement, and finds that if he did he was wrong, but still found that a

failure to come forward to exonerate oneself rendered one guilty, i.e. had the same outcome,

but for a different reason. Coppin JA found that a failure to exonerate entitled the drawing of an

inference of guilt. So there is really little practical difference in his approach from that of the

Labour Court, apart from saying that a failure to come forward to exonerate is not misconduct,

but simply a mechanism by which misconduct is proved by inference. The bottom line on both

approaches is that if innocent you bear an onus to prove your innocence.


disclosure because there were sufficient safeguards and protections

to enable this to be done confidentially and safely. There is

insufficient evidence to draw this inference in respect of the sixty-

five and hence the CCMA commissioner reasonably came to that

conclusion.

THE ONUS AND WHETHER IT WAS REASONABLE FOR THE CCMA

COMMISSIONER TO FIND THAT IT HAD NOT BEEN DISCHARGED.

51. It is common cause that Dunlop dismissed all striking workers which

included all of the individuals making up the sixty-five and presently

before this court. The existence of their respective dismissals is thus

established. Accordingly, in terms of s192(2) of the LRA Dunlop

must prove in respect of each of the sixty-five that his or her

dismissal is fair.

52. It is submitted that the CCMA commissioner understood the onus

and how to apply it to the facts of this case. He states in paragraph

65 of his award that Dunlop had to prove on a balance of


probabilities that each of the applicants before him knew who the

perpetrators of the principal misconduct were and that they failed to

disclose such information to Dunlop31.

53. The CCMA commissioner drew the inference that persons in the

group that gathered in Induna Mills Road were either perpetrators of

violence or knew who those perpetrators were and those that were

identified as being present amongst that group were found to be

guilty of misconduct, even if there was no evidence that they were

guilty of the primary misconduct. Whether this was the correct

31 (Paragraphs 64 and 65 of the award, volume 24, page 2312). That an employer has an onus

to prove the dismissal is fair is acknowledged by all three of the LAC judgments.

Sutherland JA expresses it loosely as being whether the employer’s decision to dismiss can be

objectively justified, which he says is fact specific. Para 8 and finds that on the facts that the

employer proved that the individuals making up the sixty-five had actual knowledge of the

misconduct and/or the perpetrators thereof - para 39.4.

Coppin JA does not mention the onus expressly but finds that they all had actual knowledge of

one, some or all of the incidents of misconduct and/or the identity of the perpetrators: pars 53

and the first sentence of para 54. The learned judge then contradicts this finding by holding that

if they did not have such knowledge the failure to exonerate themselves rendered them

culpable, imposing a duty to prove their innocence: Para 54.

The incidence of the onus is not mentioned expressly in the Judgment of Savage JA but it is

implicit that her approach of what had to be proved coincides with that of the CCMA

Commissioner: para 105 and para 113.


approach to the evidence and whether it proved the guilt of

someone who was merely present amongst a large group is

debateable, but this is not an issue in the appeal, since those that

fell into this group never challenged the award. It does not follow

however that in respect of the sixty-five all that had to be proved

was their presence when violence took place.32

54. The CCMA Commissioner found that if there was no evidence that a

particular applicant was involved, then his analysis of the evidence

led him to conclude that the evidence did not prove on a balance of

probabilities that such person had knowledge of who the

perpetrators were33 and held that the onus Dunlop bore in respect of

this category of worker was not discharged.

55. The CCMA commissioner explains his thinking on whether or not to

draw an adverse inference against workers for not testifying and

concludes that while it is possible some may not have testified to

avoid implicating themselves, it was equally possible that they did

32 Which is what Sutherland JA appears to have held

33 Paragraphs 77 and 78 of the CCMA Award. Volume 24 page 2314 It is submitted that this

finding is reasonable.


not testify because they were of the view that Dunlop had not made

a case for them to meet. In other words, the onus was not

discharged by an adverse inference being drawn from their silence

since on his assessment of the evidence they had no need to speak

up34.

The logic of the numbers

56. In determining whether each of the sixty-five was probably present

in the vicinity of the places where violence occurred, it is imperative

to analyse the evidence of the estimates of the number of striking

workers present when the various acts of violence were perpetrated

so that these can be compared with the total number of workers on

strike, namely one hundred and sixty three.

(a) According to the employers’ documentation a total of 163

employees of Dunlop were on strike (although the number was

somewhat underestimated by the witness Sutan at 15035). The 163

34 Para 79 of the award. It is submitted that his approach is considered, balanced and

reasonable.

35 Vol 4, p340


workers included the 107 members of NUMSA who were the

Applicants at the arbitration and a further 56 non-union members

who participated in the strike and were also dismissed36, but exclude

Rema Tip Top and contract labourers some of whom were also

present.

(b) Sutan estimates the number of strikers present on 22 August as

“more than 100” but adds that the crowd included some contract

labourers as well as employees from Rema Tip-Top, in addition to

the Dunlop employees37.

(c) He estimates the crowd at not more than 10 strikers on

Wednesday 5 September and the following Thursday38.

(d) On Friday 7 September he refers to a note stating that “a small

group of strikers (drunk) collect rocks and stones39.

36 The Respondents schedules appear at Volume 1, pages 44 to 56. There were more than

163 because some Rema Tip Top employees and contract labourers were also present, at least

on 22 August.

37 Volume 2 page 182, line 23 to page 183, line 11

38 Volume 3, page 286, lines 17 to 19, page 287, lines 6 and 7

39 Volume 3, page 288, lines 15 to 17


(e) On Friday 14 September he refers to a “relatively large contingent”

of approximately 60 strikers40.

(f) On the morning of Monday 25 September he refers to “a very large

group, approximately about 50”41.

(g) Sutan describes the size of the crowd that was present when stones

were thrown at his car on morning of 26 September as “more than

30 to 40”.42

(h) Referring to the photographs used to conduct an identification

exercise Sutan refers to a group of 25 people blocking vehicles.43

(i) The witness Van den Berg estimated the size of the crowd on

22 August as “50/ 60 people”44.

40 Volume 3, page 294, lines 14 and 15


42 Volume 4, page 308, line 1

43 Volume 5, page 419, line 1

44 Volume 9, page 857, line 4 to 6


(j) The witness Reuter estimated the size of the group on 22 August as

80 to 10045.

(k) The witness Farrell estimated the size of the crowd on 22 August as

“probably 50 people in total” then says that 50 is probably is top

end, probably between 40 and 50.46

(l) The witness Hyland estimated the size of the crowd on 22 August

as between 70 and 85.47

(m) On a later stage on that day he said the crowd was between 50 and

70.48

(n) He further states that “the average, on any given day, was in the

region of 30”,49 although he also mentioned 80, but was unsure as

numbers changed by the hour.50


46 Volume 10, page 978, line 22 to 979 line 6


48 Volume 11, lines 9 and 10

49 Vol 12, p1214, lines 24-25

50 Volume 12, page 1214, line 16 to 18


(o) In respect of Friday 14 September he refers to a large contingent of

approximately 60 people.51

57. What is apparent from these estimates, is that they are estimates

and vary. It is also apparent that it was only on 22 August that a

very large group was present and even then on the highest estimate

over a third of the striking workers were not present. The total

number of persons involved at any of the significant occasions was

substantially less than 163 and included employees of Rema Tip

Top and contract labourers.

58. It is not possible nor logical on the basis of these numbers to

conclude that all of the sixty-five were present at the time when

there was violent behaviour.

59. That obvious fact was accepted by both judges of appeal making up

the majority. This self-evident feature notwithstanding they still find

that each of the sixty-five must have been present at least some of

the time; without there being any evidence as to why this must be

51 Volume 12, page 1219, lines 11 to 21


so. They base their conclusion on what they regard as the nature of

strikes and what could be expected of workers in a strike context.

60. It is of course possible to speculate that some of the sixty-five may

have been present in Induna Mills Road at some time or other over

the month the strike endured, but then the violent conduct was not

continuous so one would have to speculate further that they must

have been present when there was violence and that they not only

witnessed it but were also able to identify the perpetrators.

61. On the numbers it is not logical to assume that every one of the

sixty-five was present on at least one occasion when there was

violence and was also able to identify the perpetrators.

62. Dunlop also appears to have accepted that it was not possible to

conclude that all 65 were present at the time when there was violent

behaviour. It was never their case at arbitration that this was so, and

the witness Sutan makes the obvious but nonetheless critical

concession when questioned by the arbitrator that not all of the


striking employees would have knowledge of who the perpetrators

of violent misconduct were.52

63. It was also never a ground of review before the Labour Court53 that

the arbitrator had been asked to draw any such inference or that he

could and should have done so.

Speculation or inference

64. It is pure speculation not based on any evidence that all of the sixty-

five must have been present at one time or another when violence

occurred and that all of them would be able to provide the employer

with information that was relevant to identifying the perpetrators.

65. Having regard to the violence it is likely that there were workers who

did not want to get involved in that type of behaviour and who chose

for that reason not to be present. There are often workers who

52 See the exchange between the arbitrator and Sutan at Volume 9, page 825 of the record, line

4 to page 827, line 25

53 Vol 24, p2369 at 2381 - 2383


simply do not want to participate actively and choose not to do so,

but again this is speculation. Assumptions based on the collective

nature of strikes and pointing out that striking is a collective activity

and asking how likely it is that workers would absent themselves

from demonstrations of resolve and solidarity, which the learned

judge of appeal says is the very fibre of strike culture, is speculation

on his part because there was no evidence to support this

conclusion in the present factual context.

66. What is apparent from the estimates of the number of persons

present at particular times and occasions is that on the evidence

before the CCMA commissioner not all the striking workers were

present at the times there was violence. This makes the inference

that all must have been present some of the time and witnessed the

violent misconduct and who the perpetrators were, inconsistent with

the evidence and illogical. It is not an inference that can properly be

drawn on the evidence in respect of the individual members of the

sixty-five.

67. It is contended that the CCMA commissioner’s approach accords

with the constitutional right to fair labour practices and the


protections afforded to everyone including each individual.

Misconduct dismissals can only be fair if the misconduct is proved

and it is submitted that this has to be proved in respect of each

employee dismissed for misconduct and that the approach of the

CCMA Commissioner is correct.

68. It is not unreasonable therefore for the CCMA commissioner to have

found that the onus of proving misconduct in respect of the sixty-five

was not discharged.

CAN THE INFERENCE DRAWN BY THE LABOUR COURT AND THE MAJORITY OF THE LAC BE PROPERLY DRAWN FROM THE EVIDENCE?54

69. To hold, as the majority did, that an adverse inference could be

drawn at all from any employees failure to come forward and

exonerate themselves is contrary to our established principles of

evidence.

54 It is submitted that the inference that was drawn should not have been drawn, but even if it

could have been, not drawing that inference on an assessment of the evidence falls within the

realms of difference that can arise between reasonable commissioners and does not render the

award one which no reasonable commissioner could have issued.


(a) The case of Galante v Dickinson55 is referred to in both FAWU and

Savage AJA’s judgment.

(b) The following was stated by Miller JA in Titus v Shield Insurance

Company Limited56:

“It is clearly not an invariable rule that an adverse

inference be drawn; in the final result the decision must

depend in large measure upon “the particular

circumstances of the litigation” in which the question

arises. And one of the circumstances that must be taken

into account and given due weight, is the strength or

weakness of the case which faces the party who refrains

from calling the witness. It would ordinarily be unsafe to

draw an adverse inference against the Defendant when

the evidence of the Plaintiff, at the close of the latter’s

case, was so vague and ineffectual that the Court could,

only by a process of speculation or very dubious

inferential reasoning, attempt to find the facts”.

55 1950 (2) SA 460(A)

56 1980 (3) SA 119(A), at 133F to G


(c) In AA Onderlinge Assurancie-Associasie BPK v De Beer57, the

Appellate Division approved the following dictum by Miller J (as he

then was) in S v Naik58:

“If the Court, on the evidence before it, would come to

that conclusion, it would be making an assumption rather

than drawing an inference, for the facts necessary for

the drawing of an inference are lacking. As Lord Wright

observed in Caswell v Powell Duffryn Associated

Collieries Limited (1939) 3 All ER 722 at 733:

“Inference must be carefully distinguished from

conjecture or speculation. There can be no inference

unless there are objective facts from which to infer the

other facts which it is sought to establish…but if there

are no positive proved facts from which the inference

can be made, the method of inference fails and what is

left is mere speculation or conjecture.”

57 1982 (2) SA 603 (A) at 620 E to G

58 1969 (2) SA 231 (N) at 2345 C to E


70. In the light of the speculative nature of the reasoning of the majority

judges, it is thus submitted that the approach to the evidence and

what inferences could properly be drawn that is adopted in the

analysis of Savage AJA in the LAC is the correct approach59.

71. The judgment of Coppin JA does not set out what evidence is relied

upon by him to draw the inference he does in paragraph 53 of his

judgment that each of the sixty-five was present at some or all of the

incidents when the misconduct occurred, that they had actual

knowledge of such misconduct and/or the perpetrators thereof, and

their failure to disclose such knowledge was deliberate. He simply

refers in general terms to “circumstantial evidence” in paragraph 49,

which he says was placed before the arbitrator. The closest he

comes to an analysis thereof is what he states in paragraphs 51 and

52 and 54 of the judgment and it seems that this is all that he relies

upon to draw the inference in question, which is the same material

relied upon by Sutherland JA in paragraph 34 of his judgment.

59 Judgment of Savage JA paras 105-114


72. In paragraph 51 and 52 the learned judge mentions the following

evidence: (a) all the sixty-five were on strike with the other

workers60; (b) there were several incidents of misconduct that

occurred over the period of the strike; (c) the employer requested

the union and the striking workers to assist with the identification of

perpetrators; (d) there was no prompt response to the request and

no denial that any of the members were present when the acts of

misconduct were perpetrated61; (d) the union led false evidence with

regard to the happening of the misconduct62; [this evidence is said

to prove the requisite knowledge]. In paragraph 54 he concludes

that it can be inferred that the failure to disclose that knowledge was

60 Sutherland JA makes much of this common cause fact asking rhetorical questions about how

striking workers would behave and show solidarity to conclude (logically inconsistent with the

evidence as to numbers present at the violent incidents) that they all must have been present at

least some of the time when there was violence. The inference can then be drawn that they had

actual knowledge of the misconduct perpetrated because it was so spectacular.

61 He fails to mention that the employer did not ask for the names of those who were not

present to be provided. It asked for the names of the culprits or evidence to assist in the

identification of them. So, it is a bit steep to rely on this factor in drawing the inference of actual

knowledge and a deliberate failure to disclose. The judgment also does not do justice to the

correspondence that was exchanged and the request for information that was not provided.

62 This is a pretty neutral factor in relation to individual guilt. Sutherland JA finds that it leads to

the inference of knowledge because they made common cause with the union’s lie. This is a

non sequitur as the approach of the union in the arbitration cannot prove actual knowledge of

misconduct of individuals who are not shown to have even been present. They were not

dismissed for making common cause with the false evidence.


deliberate because they did not come forward to explain that they

could not make the disclosures because of intimidation, fear of

reprisals and an absence of any effective protections.63

73. It is said by both majority judgments in the LAC that the inference

drawn is consistent with the proven facts and is the only plausible

inference to be drawn. The learned judges do not deal with the fact

that the evidence established by reference to estimates of numbers

present at the various relevant times were such that all strikers

could not have been present at each of the incidents and many

therefore were not. There is therefore a logical flaw in the drawing of

the inference. Coppin JA fails to mention or take into account the

evidence referred to in the judgment of Savage AJA64 of the fear

that the one person who did come forward said she felt in doing

what she did and her bravery in doing that, not to provide

information, but only to exonerate herself. He fails to deal with the

fact that if there was violence, workers were also at risk from the

violent element and/or may have wanted to have nothing to do with

63 Para 54 of the judgment

64 Para 102 of LAC judgment. Vol 26, p2518. Sutan described her as brave, vol 4, p377, lines

8-9


violent conduct and may well therefore have chosen for that reason

not to participate actively.

74. The choice of facts on which the inference is drawn is very selective

and it is submitted that the evidence did not permit such an

inference to be drawn.

75. It is submitted that there is no proper reasonable and rational basis

on the evidence to find that each of the sixty-five must have been

present when incidents of violence occurred simply because they

were on strike and that because they were present, would have

knowledge of the perpetrators.

76. It is submitted that the more plausible, or at least equally plausible,

inference is that the workers who were not identified had no relevant

knowledge and hence no duty to speak up, or at the very least that

some of them fall into that category and there is no basis for


distinguishing amongst them on the evidence65. The onus becomes

decisive.

77. If they had no duty to speak up having nothing to say, they could not

be guilty of misconduct of not speaking up. In such a situation the

onus is the determining factor. The onus is not discharged on the

proven facts.

78. There were plainly workers who were willing to act violently and did

so even in the face of an interdict. It is reasonable to assume that

there would be workers who would be timid and fearful of being

targeted if they came forward and there is no reason why they

should put themselves at this risk if they have nothing meaningful to

convey. The duty of good faith inherent in the employment

relationship does not require them to do so. This feature is highly

relevant in drawing inferences from a failure to come forward and

65 The violence that was going on and the lack of protections for persons who might come

forward if they were sure that this would not lead to personal risk to themselves might equally

be a reason for not coming forward. It should at least have been put into the mix rather than

simply rejected on the basis that it was the employee who was in this position who had to

explain. Even doing that has its risks and this should at least have been factored into the

reasoning.


was not taken into account by the Labour Court or either of the

judgments of the majority in the LAC.

79. The failure to come forward is therefore a neutral factor, wrongly

emphasised and essentially made decisive in the judgment of

Labour Court and of the majority in the LAC.

80. The reasoning of the CCMA commissioner and his finding with

regard to the onus and its discharge are reasonable and his award

should not have been set aside on that basis.

COLLECTIVE GUILT

81. It is further submitted that the very suggestion that employees were

present on the scene (and therefore guilty of misconduct by failing

to come forward and exonerate themselves) because they were

engaged in a collective activity, amounts to an application of

“collective guilt”.

82. In essence, Sutherland JA’s reasoning is no different from that

advanced by the employer that was rejected in National Transport

Union and another v PRASA66, namely that acts of misconduct

66 (2018) 39 ILJ 560 LAC


occurred during a strike, the strike was a collective activity, the

strikers were thus presumed to have been present during these acts

and were guilty of misconduct by not coming forward. This line of

reasoning was correctly rejected by the LAC in PRASA, which

reiterated that all this amounts to is an expression of collective guilt,

which is not part of the law.

RELIEF

83. The Applicant seeks an order granting it leave to appeal and then

an order upholding the appeal, setting aside the Order of the LAC

and replacing it with an Order that the appeal from the Labour Court

is upheld and the Order granted by the Labour Court in paragraph

83 of the Judgment is set aside.

84. Costs should follow the result.

MAURICE PILLEMER SC

PAUL SCHUMANN

APPLICANT / APPELLANT’S COUNSEL

Chambers, Durban.

22 November 2018


CONSTITUTIONAL COURT CASE NO. 202/18

LABOUR APPEAL COURT CASE NO. DA 16/2016

LABOUR COURT CASE NO. D 345/14

In the matter between :

NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA (“NUMSA”) obo KHANYILE, NGANEZI & OTHERS APPLICANT/APPELLANT

and

DUNLOP MIXING & TECHNICAL SERVICES (PTY) LTD FIRST RESPONDENT

DUNLOP BELTING PRODUCTS (PTY) LTD SECOND RESPONDENT

DUNLOP INDUSTRIAL HOSE (PTY) LTD THIRD RESPONDENT

COMMISSION FOR CONCILIATION, MEDIATION & ARBITRATION FOURTH RESPONDENT

COMMISSIONER ALMEIRO DEYZEL N.O. FIFTH RESPONDENT

________________________________________________________

FIRST, SECOND AND THIRD RESPONDENT'S

WRITTEN ARGUMENT

________________________________________________________

P a g e | 2

TABLE OF CONTENTS

PAGE

1. Introduction 3

2. Labour Court’s Findings 7

3. The Labour Appeal Court 16

4. The Law : The Test on Review 21

5. The Law : Derivative Misconduct and Hearings 24

6. Pertinent Facts in the matter 33

7. Derivative Misconduct 36

8. Analysing the evidence 39

9. Other considerations 40

10 Conclusion 44

P a g e | 3

1. INTRODUCTION

1.1 First, Second and Third Respondents (“the Respondents”) were

the Respondents in the CCMA proceedings brought by the

Appellants as Applicants. The Fifth Respondent will be referred

to as the Commissioner.

1.2 At the conclusion thereof Respondents were ordered to re-instate

groups of employees with immediate effect. These were the

employees who had been dismissed for derivative misconduct

only. There was a group of employees who had been dismissed

for specific misconduct. This group was not re-instated.

1.3 Respondents then instituted a review in the Labour Court. This

review explains the grounds of review and motivates the setting

aside of paragraphs (a) (b) and (c) of the award. The

Commissioner’s award is an annexure to this application.

Record : Volume 24 : pages 2300-2351 Record : Volume 24 : pages 2365-2384

1.4 The grounds of the opposition are set out in the opposing

affidavit.

Record : Volume 24 : pages 2386 - 2393

P a g e | 4

1.5 On review in the Labour Court paragraphs (a) (b) and (c) were

deleted and these paragraphs were substituted with an order

that the dismissals of these persons whose names appear in

paragraphs (a) (b) and (c) were substantively and procedurally

fair.

Record : Volume 25 : pages 2396 - 2419

1.6 Appellants appealed this order to the Labour Appeal Court with

leave and sought to have the order of the Labour Court replaced

with an order that the application for a review be dismissed with

costs.

Record : Volume 25 : pages 2432

1.7 The Labour Appeal Court decided by a majority of two to one to

dismiss the appeal with costs and to confirm the order of the

Labour Court. The judgments are as follows :-

Sutherland JA – Volume 26 : pages 2475 – 2494

Coppin JA – Volume 26 : pages 2494 – 2505

Savage AJA – Volume 26 : pages 2505 - 2523

P a g e | 5

1.8 Appellants then applied for leave to appeal (and appealed) to the

Constitutional Court. This seeks to reinstate the arbitration award

of the Commissioner with costs.

Record : Volume 25 : page 2435 – 6

1.9 The issues which Appellant has noted for the attention of this

Honourable Court are :-

a) The issue of unfair dismissal in terms of Section 185 (a) of

the Labour Relations Act 66 of 1995 (“LRA”) which gives

expression to Section 23 (1) of the Constitution.

b) The issue of a lawful strike and the participation in strike

action by persons who wish to participate peacefully and not

be compelled to inform on their co-strikers.

c) The nature and extent of the duty on employees to inform

on other employees committing misconduct or whether they

have a duty to disclose their activities, given :-

P a g e | 6

(i) the complexities of our society rooted in a history of

discrimination and inequality;

(ii) the effect of this context and the tensions inherent in

the contractual relationship on the development of an

expansive duty to make disclosure;

d) The limitation of the right to remain silent.

e) The nature of the onus in Section 192 of the LRA.

f) Whether the risks and dangers attendant upon speaking out

and naming perpetrators require the principle to be

ameliorated.

g) The role of trade unions in assisting or participating in

investigations to identify perpetrators.

h) The extent of the evidence required before a prima facie

case of derivative misconduct is proven.

P a g e | 7

i) The process required of the employer to justify an

employee’s dismissal for failure to divulge information.

j) Whether the practice adopted by Respondents in this

instance infringes on the onus provision in Section 192 of

the LRA.

Record : Volume 25 : pages 2447 – 2451

1.10 The main issue in this appeal is the ambit and scope of the

principle of derivative misconduct applied to the facts of this

matter.

1.11 Respondents support the judgments of the Labour Court and the

majority in the Labour Appeal Court.

2. LABOUR COURT’S FINDINGS

2.1 It is critical to determine what the findings of the Labour Court

were.

2.2 The Labour Court summarised the issues before it as follows :-

P a g e | 8

“[13] The review is confined only to the conclusion

by the third respondent that the dismissal of

the listed respondent employees for

derivative misconduct was unfair. There is

no cross review regarding the finding by the

third respondent that the dismissal of the

remainder of the employees by the

applicants was fair. The respondents do not

take issue with the third respondents

decision that the applicants’ procedure was

fair or that the sanction of dismissal for

derivative misconduct was appropriate.

[14] The first respondent confines it opposition to

the applicants’ application to the simple

averment that there was insufficient

“evidential basis” for a finding of derivative

misconduct as the respondent employees

“were not mentioned” in the evidence before

the arbitration; and that the “evidence led by

the applicants that it could not trust any of

the striking workers, whether there was

evidence of misconduct on their part or not,

is irrational and irrelevant in the absence of

any evidence of wrongdoing on the part of

such employees.”

Record : Volume 25 : page 2399

P a g e | 9

2.3 The Labour Court then concluded that the Appellant’s approach

ignores the fact that the nature of derivative misconduct lies in

the failure of the striking workers to come forward to assist the

employer.

Record : Volume 25 : 2399 : para 15

2.4 The Commissioner had found that the distinction between the two

groups (those fairly dismissed and those unfairly dismissed) was

whether the Respondents had discharged the onus of

establishing knowledge of acts of violence, intimidation and

harassment which those persons were obliged to provide to

Respondents.

2.5 Respondents’ attack on the logical reasonableness of the

Commissioner’s award was that their evidence went further than

merely knowledge of these acts. It also comprised of a breach of

the trust relationship by failing to come forward to exonerate

themselves by explaining that they were not present or could not

identify the perpetrators or to come forward and identify the

perpetrators.

Record : Volume 25 : pages 2400-1 : paras 18 – 24

P a g e | 10

2.6 The Labour Court then recorded that it was in this respect that

Respondents contended that the decision of the Commissioner

was unreasonable and could not have been reached by a

reasonable Commissioner on the evidence and other material

before it.

Record : Volume 25 : page 2401 : para 25

2.7 After considering the evidence summarised and the findings

made by the Commissioner and the law the Labour Court held :-

“[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

P a g e | 11

perpetrators constituted derivative

misconduct.

[49] The third respondent, having determined

that the derivative misconduct was only a

“failure on their part to provide the

[applicants] with particulars of the identities

of the perpetrators of acts of violence,

intimidation and harassment committed from

22 August 2012 to 26 September 2012”

appears to have proceeded on the premise

that the only misconduct the applicants were

required to prove on a balance of

probabilities was that the [employees] knew

who the perpetrators of the principal

misconduct were and that they failed to

disclose such information to the

[applicants].”

[50] This raises two issues.

[51] Firstly : there is a clear distinction between :

a. Proving on a balance of probabilities that the

employees knew who the perpetrators were

and failed to come forward and disclose this

information as was found by the third

respondent to be the onus resting on the

applicants; and

b. Considering whether, as was postulated in

the Leeson Motors matter the respondent

employees were under a duty, consistent

with the “essential … trust and confidence”

P a g e | 12

of an employment relationship to come

forward with an explanation.

[52] Secondly the third respondent does not

consider whether the evidence of the

applicants’ witnesses was sufficient to

require the respondent employees to do

more than simply remain silent.”

Record : Volume 25 : pages 2407-8

2.8 The Labour Court then cited an extract from the Leeson

decision hereinafter referred to dealing with the FAWU decision

and concluded, in paragraphs [54] and [55] that the

Commissioner failed to consider Respondent’s complaint that

the failure of the employees to come forward constituted a

breach of the relationship of trust and confidence and only

considered whether the employees were proved to have been

able to identify the perpetrators. In short it was an attack on the

Commissioner’s approach not to infer through their silence that

they made themselves guilty of a derivative violation of trust and

confidence.

Record : Volume 25 : page 2408-9 : para 53-55

P a g e | 13

2.9 The Commissioner found that all employees were given an

opportunity to come forward and explain, identify or exonerate

themselves. There was no response to this by the employees.

2.10 The crux of the judgment of the Labour Court is in the following

paragraphs :-

“[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

P a g e | 14

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

P a g e | 15

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] 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.”

Record : Volume 25 : pages 2417-8

2.11 That then is the finding on review of the Labour Court against

which Appellant appealed to the Labour Court.

2.12 Appellants appeal to the Labour Appeal Court was based on the

finding by the Commissioner that in the absence of identifying

employees as complicit in or even present during the acts of

misconduct the onus had not been discharged and the dismissals

were unfair.

P a g e | 16

2.13 The appeal was therefore based on this foundation : The Labour

Court erred in holding as it did in paragraph 79 of its judgment,

contended the Appellant.

3. THE LABOUR APPEAL COURT

3.1 There were three judgments; those of Sutherland JA, Coppin JA

and Savage AJA.

3.2 A short analysis of the main findings of each follows.

3.3 Sutherland JA

3.3.1 This judgment traces the development of the principle of

“derivative misconduct” and sets out the relevant facts of

the instant case.

3.3.2 Sutherland JA describes the “true enquiry” as being

whether the facts adduced constitute evidence of a breach

of the duty of good faith; accordingly the good faith

relationship dictate the scope of the enquiry.

P a g e | 17

3.3.3 Proof of actual knowledge is required.

3.3.4 In applying the principle to the facts Sutherland JA found

that the inferences drawn from the whole body of the

evidence established the finding reached by the Labour

Court was correct and that the appellant employees were

present during the violence, and he provides these

grounds in support of this finding (paras 33 – 37 and 39)

3.3.5 Sutherland JA then for the reasons set out in para [39]

found that the appellant employees had breached the duty

of good faith in a serious manner to warrant dismissal.

3.4 Coppin JA

3.4.1 Coppin JA concurred in the judgment of Sutherland JA.

3.4.2 However, Coppin JA expressed a concern with the

Labour Court’s findings on the duty to speak and the right

to silence.

P a g e | 18

3.4.3 In all other respects Coppin JA was in agreement with

Sutherland JA.

3.4.4 The essence of the finding of Coppin JA was set out in

para [54] as follows :

“[54] Culpability for the derivative misconduct in

question constituted of no more than the

following : there was a duty on appellants as

individuals to speak, because they had actual

knowledge of one, some or all of the incidents

of misconduct and/or of the identity of the

perpetrators thereof; their failure to exonerate

themselves, by either disclosing such

knowledge to the employer, or raising a

defence that justified the non-disclosure of

such information, such as for example,

intimidation, or the fear of reprisals and

absence of any effective protections against

the same, was deliberate and therefore

culpable. In my view, this is consistent with

what was held by this Court in Hlebela.”

P a g e | 19

3.5.5 Coppin JA’s obiter statements based on the “potential

tyranny at the hands of employers” do not find application

in this matter. A beleaguered employer was faced daily

with acts of cowardice and thuggery which became

increasingly more violent until the CEO almost lost his life.

All of this was contrary to a Labour Court Order and in the

absence of police protection or the maintenance of law and

order. It should never be a matter of life and death to go to

work.

3.5 Savage AJA

3.5.1 Savage AJA approached the issues on the basis that the

enquiry was concerned with employees who also had

knowledge of acts of violence, intimidation and harassment

but acted in breach of the trust relationship or by failing to

come forward to exonerate themselves.

3.5.2 After a consideration of the law including National

Transport Union v PRASA (2018) 39 ILJ 560 LAC

Savage AJA concluded that the term “derivative

P a g e | 20

misconduct” was confusing. Apart from this there is no real

difference between the three surveys of the law.

3.5.3 Savage AJA opined however that a duty to disclose

information to an employer is onerous in the complex

society in which we live. She confirmed that there was a

duty on an employee to act in good faith towards the

employee, but that a less equivocal recordal of such duty

was appropriate (para [104]).

3.5.4 However, more significantly to the issues on appeal

Savage AJA challenges the findings of Sutherland J.A.

on the test of circumstantial evidence (paras [107] – [110])

and concludes that this may have the effect of shifting the

onus especially in requiring employees to exonerate

themselves (at para [113]).

3.6 It is well to bear in mind that the basis of the appeal to the

Labour Appeal Court was on the evidential findings, the onus of

which was on the employer and was not reversed and that the

employer failed to discharge the onus because it was not proved

that any of the appellant respondents were present.

P a g e | 21

3.7 The fundamental elements of the “derivative misconduct”

principle or concept were not challenged.

3.8 Up to the conclusion of the Labour Appeal Court process the

contested issue was the issue on the analysis of the evidence

identified above. Inasmuch as the Application for Leave to

Appeal identifies as issues challenges to the accepted content of

the principle this has not been raised before any court in this

matter before now and should not be entertained at this juncture.

Everfresh Market Virginia v Shoprite Checkers

2012 (1) SA 256 (CC) at paras [51] and [52]

4. THE LAW : TEST ON REVIEW

4.1 The review was brought in terms of Rule 7A of the Rules of the

above Honourable Court and in terms of Section 145 of the LRA.

4.2 The test for review is “a stringent [one] that will ensure that …

awards are not lightly interfered with” and the emphasis is in the

result rather than a meticulous analysis of the reasons.

P a g e | 22

Fidelity Cash Management Services v CCMA & Others

(2008) 29 ILJ 964 (LAC) at para [100]

4.3 The threshold is fairly high because the applicant for a review

must show that the outcome reached by the arbitrator was not

one which could reasonably be reached on the evidence and

other material before the arbitrator.

Sidumo & Another v Rustenburg Platinum Mines

2008 (2) SA 24 (CC) at paras [105] – [110]

4.4 This was dealt with by the Supreme Court of Appeal in :-

Herholdt v Nedbank Limited 2013 (6) SA

224 (SCA) at para [25]

as follows :-

“[25] In summary, the position regarding the

review of CCMA awards is this : A review of

a CCMA award is permissible if the defect in

the proceedings falls within one of the

P a g e | 23

grounds in s 145 (2) (a) of the LRA. For a

defect in the conduct of the proceedings to

amount to a gross irregularity as

contemplated by s 145 (2) (a) (ii), the

arbitrator must have misconceived the

nature of the inquiry or arrived at an

unreasonable result. A result will only be

unreasonable if it is one that a reasonable

arbitrator could not reach on all the material

that was before the arbitrator. Material

errors of fact, as well as the weight and

relevance to be attached to particular facts,

are not in and of themselves sufficient for an

award to be set aside, but are only of any

consequence if their effect is to render the

outcome unreasonable.”

4.5 The “gross irregularity” required is not confined to a situation

where the arbitrator misconceives the nature of the enquiry but is

also extended to those situations where the result is

unreasonable, as described by the Constitutional Court in

P a g e | 24

Sidumo, i.e. that the result falls outside the range of reasonable

outcomes.

4.6 Dialectical unreasonableness is an analysis of the process of

reasoning and a conclusion that on the relevant material facts and

issues the arbitrator came to an unreasonable result.

Herholdt (supra) at paragraphs [22], [23] and [25]

5. THE LAW : DERIVATIVE MISCONDUCT AND HEARINGS

5.1 It is not acceptable to dismiss a group of employees without

proof that all of them were involved in the unlawful acts. This

would offend the principle of criminalising the innocent. See

NUM v Durban Roodeport Deep LTD (1987)

8 ILJ 156 (LC) at 162 H – I

This is known as “collective guilt”.

5.2 The dismissal of employees on the basis of “collective guilt” is not

an acceptable method of operating.

P a g e | 25

5.3 However, the courts have endeavoured to find an equitable

method of giving an employer justice where an unlawful group of

employees have rendered themselves liable for dismissal without

being identified.

5.4 One of the exceptions to the principles set out above is the

concept of common purpose. This imputes liability for an act if all

associate themselves with the act of one or a few of the group.

The difficulty with common purpose is that it is too easily equated

to “collective guilt”.

5.5 The principle of common purpose has been held to be

constitutional and the requirements have been restated as

follows:-

a) common purpose is shown when a person participates in

conduct, with mens rea, which brings about the result

planned by all participants, despite some of them not

causing the result.

OR in a little more detail :

P a g e | 26

b) The person must have been present, must have been

aware of the resultant unlawful act, must have made

common cause with those who committed the act, must

have manifested his sharing of the common purpose and

that person must have mens rea in that he intended the

unlawful act to take place or had foreseen the possibility

of it taking place and proceeded reckless.

S v Thebus & Another 2003 (6) SA 505 (CC)

5.6 Caution has been expressed that common purpose should not be

confused with collective guilt. It should also be noted that

Respondents did not rely upon common purpose as a ground of

dismissal.

5.7 Another exception is “derivative misconduct.” A feature of

derivative misconduct is that it imputes guilt when a person who is

called upon to come forward remains passive and fails to assist in

an investigation.

5.8 The classic statement of this principle is contained in

P a g e | 27

Chauke and Others v Lee Service Centre CC

t/a Leeson Motors (1998) 19 ILJ 1441 (LAC)

at paragraphs [30] – [33] :-

“[30] The present case illustrates the second

category. Management did not advance an

operational rationale for the dismissal. It

charged the 20 workers in the paint-shop and

cleaning and polishing sections with

misconduct – malicious damage to property –

and concluded that they had all been guilty of

it. Was this unfair?

[31] In the second category, two lines of

justification for a fair dismissal may be

postulated. The first is that a worker in the

group which includes the perpetrators may be

under a duty to assist management in bringing

the guilty to book. Where a worker has or may

reasonably be supposed to have information

concerning the guilty, his or her failure to come

forward with the information may itself amount

to misconduct. The relationship between

employer and employee is in its essentials one

of trust and confidence, and, even at common

law, conduct clearly inconsistent with that

essential warranted termination of employment

(Council for Scientific & Industrial Research v

Fijen (1996) 17 ILJ 18 (A) at 26 D –E). Failure

P a g e | 28

to assist an employer in bringing the guilty to

book violates this duty and may itself justify

dismissal.

[32] This rationale was suggested, without being

decided, in Food & Allied Workers Union &

Others v Amalgamated Beverage Industries

Ltd (1994) 15 ILJ 1057 (LAC) (FAWU v ABI).

There a large group of workers had assaulted

a ‘scab’ driver, leaving him severely injured.

The company was unable to prove which of

those present at the workplace at the time

actually perpetrated the assault. All those who

had clocked in and who were thus in the

vicinity of the incident when it occurred were

charged with the assault. None came forward

at the workplace hearings or in the Industrial

Court to affirm their innocence or to volunteer

any evidence about the perpetrators. Nugent J,

sitting with assessors John and Satchwell,

suggested at 1063B that :

‘In the field of industrial relations, it may be that

policy considerations require more of an

employee than that he merely remain passive

in circumstances like the present, and that his

failure to assist in an investigation of this sort

may in itself justify disciplinary action.’

[33] This approach involves a derived justification,

stemming from an employee’s failure to offer

reasonable assistance in the detection of those

P a g e | 29

actually responsible for the misconduct.

Though the dismissal is designed to target the

perpetrators of the original misconduct, the

justification is wide enough to encompass

those innocent of it, but who through their

silence make themselves guilty of a derivative

violation of trust and confidence.”

5.9 The principle that has been accepted is that dismissals will be

accepted as fair if the employees were aware of the identity of

the perpetrators or serious misconduct but declined to disclose

this information to their employer after being requested to do so.

The onus of establishing these requirements is on the employer.

RSA Geological Services v Grogan N.O. & Others

(2008) 29 ILJ 406 (LC)

5.10 In this case it analyses the Chauke case referred to above and

FAWU v ABI (1994) 15 ILJ 1057 (LAC) and concludes that on

the facts in these cases the actual finding was that the employees

dismissed were either participants in the unlawful behaviour or

they lent their support to it.

P a g e | 30

5.11 It is submitted that care must be taken to ensure that the main

principles in Chauke are applied. Those principles are that trust

and confidence are essential components of the relationship, and

these require an employee to offer reasonable assistance in the

detection and investigation of misconduct. A breach of these

duties may in given circumstances justify a dismissal for

derivative misconduct.

5.12 This is consistent with the decision in :

Western Platinum Refinery Ltd v Hlebela & Others

(2015) 36 ILJ 2280 (LAC)

where Sutherland JA stated at paragraph [8] as follows :-

“The effect of these dicta is to elucidate the

principle that an employee bound implicitly by a

duty of good faith towards the employer breaches

that duty by remaining silent about knowledge

possessed by the employee regarding the business

interests of the employer being improperly

undermined. And controversially, and on general

principle, a breach of the duty of good faith can

justify dismissal. Nondisclosure of knowledge

P a g e | 31

relevant to misconduct committed by fellow

employees is an instance of a breach of the duty of

good faith. Importantly the critical point made by

both FAWU and Leeson Motors is that a 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.“

5.13 The facts of each case must be judged on these principles.

5.14 This leads to the next issue.

5.15 Although it is a general principle that a fair process must

precede a dismissal based on misconduct, this is not the

invariable rule. Apart from the principle that there is no

recognized single method of inquiry, there is also the principle of

“overriding extremity” or “crisis zone situations”. This usually

involves a large number of employees involved in serious and

continuing misconduct. It is in these cases that the employer

may terminate the employment to resolve the immediate crisis.

P a g e | 32

This is embodied in Section 4 (4) of the Code of Good Practice

(Schedule 8 to the LRA), which states:-

“In exceptional circumstances, if the employer

cannot reasonably be expected to comply with

these guidelines, the employer may dispense with

the pre-dismissal procedure.”

5.19 The relevant authorities for this exception are :-

VNR Steel (Pty) Ltd v NUMSA (1995)

16 ILJ 1483 (LAC) at 1486 C – E

“An employer faced with a strike, even one which is

part of the collective bargaining process, is not

obliged to simply close down his operations and

resign himself to the economic harm being inflicted.

A strike is after all a contest of economic strength,

and not a test of how much pain a pinioned

employer can withstand. The employer has no

obligation to lose that contest. He is entitled to

minimize or even obviate the economic

consequences of the strike while it endures. If it is

only by dismissal that an employer can overcome

an illegitimate restriction on his ability to continue

operating, he may well be justified in taking that

step.”

P a g e | 33

Mzeku v Volkswagen SA (2001) 22 ILJ 1575 (LAC)

This case is also authority for the principle that reinstatement is

not competent in the case where the dismissal is unfair only

because of procedure.

5.20 It has also been held that a fair appeal can cure the defect in

the procedure.

NUM v Zinc Corporation of SA

(1987) 8 ILJ 499 (LC) at 502

In fact the evidence and the findings of the Commissioner shows

it to be the opportunity of a hearing and not an appeal proper in

this case.

6. PERTINENT FACTS IN THIS MATTER

6.1 Respondents do not accept the chronology of background facts

set out by Appellants in their Argument. They are selective and

have been impermissibly edited in Appellants’ favour.

P a g e | 34

6.2 It is common cause that the findings of fact made by the

Commissioner are correct and are unchallenged. There was no

cross review and Appellants are not entitled to deviate from the

facts found proved by the Commissioner.

6.3 Respondents accept the factual findings of the Commissioner.

These include :-

6.3.1 The background set out in paragraphs 13 to 26 of the

Award. (Volume 24 commencing at page 2300).

6.3.2 The survey of the evidence and the argument and the

analysis thereof set out in paragraphs 27 to 59.

6.3.3 The evidence and findings thereon set out in paragraphs

68 to 77 and 82 to 87.

6.3.4 The comprehensive chronological account set out by the

Commissioner which is accepted by Respondents which

commences with the commencement of the strike and

ends with the “Appeal” hearing on 3rd October 2012 at the

P a g e | 35

Howick West Community Hall. This is set out in

paragraphs 88 to 145 of the Award.

6.4 The “reserved” issues are set out in the next paragraphs.

6.5 In the review papers Respondents set out their case. This

appears from the founding affidavit of Ommesh Sutan.

Record : Volume 24 : page 2369 onwards

6.6 This affidavit includes a “background” (paras 7 – 40). This

chronology is not inconsistent with the award findings of the

Commissioner but some further detail is given. All the evidence

set out therein reflects evidence given at the hearing before the

Commissioner.

6.7 Respondents make it clear that the factual findings and certain of

the conclusions of the Commissioner were accepted. (Refer to

para 51). However, the conclusions reached in relation to the

employees who were not named as participating in acts of

misconduct were not accepted and were the subject of the review.

P a g e | 36

6.8 The grounds of the review are set out in paragraph s 52 – 68 of

the founding affidavit.

6.9 In due course the Labour Court upheld the Respondents’ review

as set out above.

7. DERIVATIVE MISCONDUCT

7.1 This appeal concerns the scope and application of the principle of

derivative misconduct.

7.2 The law is set out above.

7.3 It was contended by Appellant that the Labour Court found for

Respondents on a basis not set out by Respondents in their

case. This contention is not accepted and is disputed because

:-

P a g e | 37

7.3.1 In the further particulars the derivative misconduct that the

Respondents were relying on was not limited in any way.


and

7.3.2 The extracts from Sutan’s evidence quoted by the

Commissioner show that what was relied upon was a wide

concept of derivative misconduct including the failure to

come forward to exonerate oneself when given an

opportunity to do so when they were part of a group on

strike.


page 2327 : para 141

7.4 Lest there by any doubt about this it was clear that evidence was

given to cover the widest concept of derivative misconduct. The

following extracts from the evidence of Sutan and McGladdery

illustrate this :-

Sutan Volume 4 : 300 : 1 – 25 Volume 4 : 329- :

P a g e | 38

343 Volume 4 : 371-

381 :

Volume 5 : 408 : 21 to 409 : 9 Volume 6 : 521 : 1 to 522 : 16 Volume 6 : 557 : 19 to 559 : 3 Volume 6 : 567 : 19 to 568 : 3 Volume 9 : 824 : 9 to 829 : 3 McGladdery Volume 15 : 1542 : 18 to

1543 : 9

Volume 16 : 1549 : 10 to 1550

: 24

7.5 The brief context to the exercise of the decision to dismiss the

employees is set out in the Commissioner’s Award. However, in

order to get the full context and mood of the events it is

necessary to read the evidence of Sutan and McGladdery in

toto.

Sutan’s evidence is contained in Volume 2 to 9 and Volume 16

(from page 1585). McGladdery’s evidence is contained in Volume

15 (page 1526) to Volume 16 (1580).

7.6 This evidence contains the background to the decision which is

being judged. The other witnesses provide the detail of the

specific events referred to by Sutan.

P a g e | 39

7.7 When all is considered it is submitted that the decision to dismiss

the entire work force for derivative misconduct is entirely justified

and that it complies with the principles of law as developed to

date.

7.8 It is submitted that the Labour Court correctly applied the law and

the judgment of the Labour Court is supported, as are the two

judgments of the Labour Appeal Court which support it.

8. ANALYSING THE EVIDENCE

8.1 The knowledge of the appellant employees must be judged in

the context of the events.

8.2 In the end Respondents called multiple witnesses to prove every

aspect of the dispute. All this evidence was accepted by the

Commissioner. This evidence leads to various inferences and

conclusions. What is required in proof of circumstantial evidence

is that the facts are proved by the circumstances on a

preponderance of probabilities. A conclusion which is the more

P a g e | 40

plausible conclusion from several conceivable ones is proved,

even though that conclusion may not be the only conclusion.

Maritime and General Insurance Co v Sky Unit Engineering

(Pty) Ltd 1989 (1) SA 867 (T) at 887

South British Insurance Co Ltd v Unicorn Shipping Lines Ltd

1976 (1) SA 708 (AD) at 713 E – H

8.3 Mere assertions are not sufficient; but assertions amounting to an

inference drawn from known facts can found conclusions.

Hülse-Reutter & Others v Gödde 2001 (4) SA 1336 (SCA)

at para [14]

8.4 The conclusions reached by the Labour Court and Sutherland JA

are the conclusions that should be reached on the evidence. It is

in the context of this evidence that the appealing employees

refusal to attend the “appeal hearing” and their failure to give

evidence at the CCMA hearing must be judged.

8.5 On a conspectus of all the evidence it is submitted that the case

against the appealing employees was proved and that they were

fairly dismissed.

P a g e | 41

8.6 This should be the end of the matter. This disposes of all the

issues which were argued by the Appellants in the Labour Appeal

Court and the Labour Appeal Court.

9. OTHER CONSIDERATIONS

9.1 There are other considerations set out in the argument of

Appellants. The first is the so-called right to remain silent.

9.2 The Labour Court (at paras [60] and [66] found that the

employment relationship based on trust and good faith and the

evidence adduced by Respondents put Appellants in a position

that they could simply not remain silent. They eschewed the

opportunities to do more than keep silent. In para [70] this is

explained fully.

9.3 Coppin JA, with respect mistakes what is being stated by the

Labour Court and refers to this in para [55]. He goes on to

equate the right to silence in criminal law. (paras [68] – [70]). It is

submitted that this goes too far.

P a g e | 42

9.4 In the law of the employment contract and consistent with the

relationship of trust and good faith it would be anathema for an

employee to decline to answer if an employer asked a question

which was work related.

9.5 The development of the common law of contract is increasingly

moving towards all contracts being of the utmost good faith.

Everfresh Market Virginia v Shoprite Checkers 2012 (1)

SA 256 (CC) at para [29] to [38] and [68] to [72]

and the cases referred to in footnote 18

Makate v Vodacom Ltd 2016 (4) SA 121 (CC)

at para [100] – [102]

9.6 This is consistent with a development to align the common law

with the norms of the Constitution (accountability, transparency,

integrity), adherence to the rule of law, and the concept of

Ubuntu (compassion, respect, human dignity, conformity to basic

norms, collective unity) which denotes humanity and morality.

S v Makwanyane & Another 1995 (3) SA 391 (CC) at para [308]

P a g e | 43

City of Johannesburg Metropolitan Municipality v Blue Moonlight

Properties 2012 (2) SA 104 (CC) at para [38]

9.7 The Constitution bases the democratic state of the Republic of

South Africa on inter alia, supremacy of the Constitution and the

rule of law (Section 1).

9.8 The principles that the Constitution asks us to aspire to are the

rule of law and the morality and humanity of society and a law

developed and based on the principles underlying the

Constitution. Section 39 (2) provides for the promotion of the

values which underlie an open and democratic society and the

spirit, purport and objects of the Bill of Rights.

9.9 These values are consistent with the established trust

relationship between employer and employee and the meeting of

the obligations which that relationship implies.

9.10 Any derogation or amelioration of that relationship and the

obligations which form part of it will be a move away from the

developments referred to above and an erosion of the rule of

law.

P a g e | 44

9.11 In common law there is also the concept of the “reasonable

man” (the bonus pater familias or diligens pater familias) who

is the standard of how ordinary persons are expected to conduct

themselves.

9.12 The practical difficulty argument presented in the judgment of

Savage AJA at paras [101] to [104] is answered by Coppin JA

at [54]; that is that the duty of good faith may be discharged by

providing information or exonerating oneself or raising a defence

that justified the non-disclosure of information (intimidation, fear

of reprisals etc.,) It is not necessary to inform on another person.

9.13 However, it is submitted that there is no legal argument for

Union solidarity or loyalty as an excuse. This is to place lawless

considerations before the rule of law.

9.14 Furthermore, on the role of Unions in circumstances such as this

matter, it is now clear that Unions are expected to act in

accordance with the rule of law and that there is no justification

for lawlessness based on the struggles of the past.

P a g e | 45

SATAWU v Garvas 2013 (1) SA 83 (CC) at paras [61] to [68]

SATAWU v Garvis 2011 (6) 2011 (6) SA 382 (SCA)

at paras [46] to [50]

10. CONCLUSION

It is therefore submitted that in the event that leave to appeal is

granted, the appeal should be dismissed with costs.

DATED at PIETERMARITZBURG on this 6th day of DECEMBER

2018.

A. J. DICKSON SC

M. MAZIBUKO

Respondents’ Counsel

P a g e | 46

2018/NUMSA v DUNLOP/Written HOA


CASE NO: 202/2018


NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA OBO KHANYILE NGANEXI Applicant

and

DUNLOP MIXING AND TECHNICAL

SERVICES (PTY) LTD First Respondent

DUNLOP BELTING PRODUCTS (PTY) LTD Second Respondent

DUNLOP INDUSTRIAL HOSE (PTY) LTD Third Respondent

COMMISSION FOR CONCILIATION

MEDIATION & ARBITRATION Fourth Respondent

COMMISSIONER ALMEIRO DEYZEL N.O. Fifth Respondent

and

CASUAL WORKERS ADVICE OFFICE Amicus Curiae

AMICUS CURIAE’S WRITTEN SUBMISSIONS

TABLE OF CONTENTS

INTRODUCTION .................................................................................... 1

COMMON LAW GOOD FAITH DOES NOT INCLUDE THE DUTY TO

DISCLOSE ............................................. Error! Bookmark not defined.

The General Rule ................................................................................ 5

Special Duty to Act Positively Only When Imposed by Law ................. 7

Source of the positive duty to report in the duty of good faith? .......... 8

Fiduciary duties separate & distinct from duty of good faith ............ 10

Contrary to public policy .................... Error! Bookmark not defined.

Undermining workers’ rights .......... Error! Bookmark not defined.

Undermining statutory scheme of self-regulation ......................... 20

Origin of misconception .................................................................. 20

Conclusion……………………………………………………………….24

DUTY OF GOOD FAITH IN CONTEXT OF A STRIKE ......................... 25

CONCLUSION ...................................................................................... 29

1

INTRODUCTION

1 Does an ordinary South African worker have a duty to take positive

action to protect her employer? In particular, does she have an

enforceable duty to speak, when she has actual knowledge of the

wrongdoing of a fellow employee? The majority in the LAC held

that she does, and that this duty is an aspect of the general duty of

good faith.

2 In this appeal, Numsa argues that the duty to disclose the

misconduct of fellow-employees may sometimes arise, but that it did

not arise in this case because there was realistically a risk to the

employees’ own safety; alternatively, because the employer did not

show that it created a safe environment for disclosure, and its

demand for information was sufficient in the circumstances.1 Numsa

makes further arguments concerning the evidential issues (including

the onus, and inference versus speculation) and collective guilt .

Dunlop, on the other hand, asks the Court to confirm that ‘derivative

1 Paragraphs 44 and 45 of Numsa’s heads of argument.

2

misconduct’2 remains part of our law, and that it is an equitable

concept which provides employers with necessary redress.

3 Having been admitted as a Friend of the Court, and in view of the

importance of the issues under consideration for all workers, the

Casual Workers Advice Office contributes the following perspective:

3.1 The general rule under the common law is that citizens are not

obliged to take positive action to protect others. Such a duty is

imposed by law only in certain defined circumstances.

3.2 The court a quo imposes on workers a duty to act positively to

protect the employer by requiring them to report the

wrongdoing of a fellow-employee. It sources this legal duty in

the duty of good faith which is an implied term in every

contract of employment. But is the duty of good faith, properly

interpreted, broad enough to encompass a positive duty to

report the wrongdoing of a fellow-employee?

3.3 The Casual Workers Advice Office argues that it is not,

because a duty to report the wrongdoing of a fellow-employee:

2 The term in Chauke v Lee Service Station CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC)

(“Leeson Motors”).

3

3.3.1 is a fiduciary duty (a duty of overarching loyalty

requiring the worker to act primarily in the employer’s

interests) which is legally separate and distinct from the

duty of good faith; and

3.3.2 is contrary to public policy – in particular, the statutory

scheme promoting strong trade unions in the interests

of self-regulation, and the constitutional values of

dignity, equality, fair labour practices, privacy, freedom

of association, and freedom of conscience, belief and

opinion.

3.4 The duty to take positive action to protect the employer by

reporting wrongdoing of fellow-employees is premised on a

notion of utter fidelity to the employer, which is an outdated

premise, and a relic of the law of master and servant.

3.5 Even if the Court finds that the duty of good faith does

encompass a legal duty to report wrongdoing by a fellow-

employee under usual working arrangements, the legal duty to

4

report cannot survive in circumstances of a strike, because

such a duty:

3.5.1 undermines the vehicle through which workers amass

sufficient power to challenge the employer (without

which there will be no self-regulation through power-

play);

3.5.2 imposes a fiduciary duty on strikers, thereby

advantaging the employer party to the conflict whilst

increasing the peril to the strikers;

3.5.3 limits strikers’ constitutional rights to equality, dignity,

fair labour practices, freedom of association, and

freedom of conscience, belief, thought and opinion;

and

3.5.4 diminishes the protection afforded to strikes, and to

striking workers, which protections are an incident of

the constitutional right to strike.

5

THE GENERAL RULE

4 The general rule is that nobody is obliged to take positive action to

protect another.3 A failure to act (an omission), even if negligent, is

prima facie lawful.4 This general rule is premised on a respect for

individual autonomy and personal freedom, bearing in mind the

burdens involved in requiring a person to actively pursue a course,

as opposed to merely refraining from doing something.5 The choice

to take positive action to protect others, to prevent harm or to report

wrong-doing is left to our conscience, or personal morality.

3 Minister van Polisie v Ewels 1975 SA (3) 590 (A) 597: ‘It appears that the state of

development has been reached wherein an omission is regarded as unlawful conduct also

when the circumstances of the case are of such a nature that the omission not only excites

moral indignation but also that the legal convictions of the community demand that the

omission should be considered wrongful and that the loss suffered should be made good by

the person who neglected to take positive action’.

4 Ewels (above).

5 Stovin v Wise [1996] 3 WLR 389: ‘One can put the matter in political, moral or economic

terms. In political terms, it is less of an invasion of an individual’s freedom for the law to

require him to consider the safety of others in his actions that to impose upon him a duty to

rescue or protect. A moral version of this point may be called the “why pick on me?”

argument.’

6

5 Under the general rule, a worker need not go out of her way to look

out for the interests of the employer. The worker is entitled to look

after her own interests, and to expect the employer to look after its

own interests. If she becomes aware of something untoward, the

worker has an election: she can do something, or nothing. This

election will be informed by her personal morality, values and

interests, as well as her assessment of the potential consequences.

6 This general rule continues to prevail. Even as the Protected

Disclosures Act aims to protect whistle-blowers from retaliation, the

law imposes on no individual a general duty to report criminal,

irregular or discriminatory conduct, whether within the workplace, or

without.

7 The continued iteration of there being no general legal duty on

individuals to act positively to ensure other people’s protection and

safety reflects contemporary concerns for personal rights and

freedoms relating to dignity, privacy, and conscience, thought, belief

and opinion.6

6 Minister of Safety and Security v van Duivenboden 2002 (6) SA 431 (SCA)para 19: ‘The

reluctance to impose liability for omissions is often informed by a laissez-faire concept of

liberty that recognises that individuals are entitled to ‘mind their own business’ even when

7

SPECIAL DUTY TO ACT POSITIVELY ONLY WHEN IMPOSED BY

LAW

8 The exception to this general position is when a special duty to act

positively is imposed by law. Thus, in certain circumstances, there

arises a legal positive duty to speak, or to take other steps to

prevent foreseeable harm. These positive duties are imposed by

law in light of public or legal policy, determined with regard to the

identifiable norms of society, and provided they are consistent with

constitutional norms.7

they might reasonably be expected to avert harm, and by the inequality of imposing liability

on one person who fails to act when there are others who might equally be faulted. The

protection that is afforded by the Bill of Rights to equality and to personal freedom, and to

privacy mmight now bolster that inhibition against imposing legal duties on private citizens’.

7 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies

Intervening) 2001 (4) SA 938 (CC); van Duivenboden (above) para 12; Fourway Haulage v

South African National Roads Agency 2009 (2) SA 150 (SCA) par 12; De v RH 2015 (50 SA

83 (CC) para 18; H v Fetal Assessment Centre 2015 (2) SA 193 (CC) para 53; Oppelt v

Head: Health, Department of Health, Provincial Administration of the Western Cape 2016 (1)

SA 325 (CC) para 17. On the link between ‘public policy’ and the Constitution only:

Barkhuizen v Napier 2007 (5) SA 323 (CC) paras 28-29; DE v RH 2015 (5) SA 83 (CC)

para 17.

8

The source of the positive duty to report: Duty of good faith?

9 The court a quo sources a special duty (to act positively by reporting

wrongdoing by fellow-employees) in the ‘duty of good faith’ which is

an implied term in every employment contract. As Numsa points

out, both South African and foreign courts have considered whether

the duty of good faith encompasses a duty to disclose information

concerning others’ misconduct.8 The courts have rejected the

proposition that ‘good faith’ includes such a duty in all

circumstances, but have left the door open, stating that the duty

may arise depending on the circumstances.

10 The Casual Workers Advice Office argues that the duty of good

faith, properly interpreted having regard to the nature of our society

and in light of the Constitution, will never encompass a legal duty on

a worker to report misconduct of a fellow-employee. A duty to

report misconduct may, in some circumstances, be owed to the

public. But it will never be owed to an employer.

8 Numsa’s heads of argument at paragraphs 33-36 and the cases there cited.

9

11 The duty of good faith does not extend to encompass a legal duty

on an ordinary worker to protect the employer by reporting

misconduct of a fellow-employee, because:

11.1 the duty is a fiduciary duty: it is a duty of overarching loyalty

and self-denial which requires the worker to act primarily in the

employer’s interests, even when this might be adverse to her

own interests; and

11.2 it would be contrary to public policy to impose such a duty, in

light of the statutory scheme promoting strong trade unions in

the interests of self-regulation, and the constitutional values of

dignity, equality, fair labour practices, privacy, freedom of

association, and freedom of conscience, belief and opinion.

12 The duty of good faith has its origins in the English law of master

and servant, which emphasised loyalty and devotion,9 and

9 Robb v Green [1895] 2 Q.B. 315 CA, 320: “[It is a general term implied by law that the

servant] shall honestly and faithfully serve his master; that he shall not abuse his confidence

in matters appertaining to his service, and that he shall, by all reasonable means in his

power, protect his master’s interests in respect to matters confided to him in the course of

his service.’

10

developed separately from the principles of equity governing

ordinary contract law – which principles instead embraced the

norms of honesty and refraining from causing harm, whilst not

requiring a strict and single-minded loyalty.10 Employment

relationships in modern-day South Africa being quite distinct from

the master/servant relation, aspects of the duty of good faith which

derive from those unequal relations can no longer survive.

Fiduciary duties separate and distinct from duty of good faith

13 A person standing in a fiduciary relation to another must

subordinate her own interests to those of the beneficiary, even

when doing so would be at her own expense.11 In the employment

context, a fiduciary relationship will arise where the employee has

some special access, discretion or power in relation to the

employer’s assets or affairs, making the employer vulnerable to

abuse and necessitating a higher level of trust – a determination 10 Frazer, A “The employee’s contractual duty of fidelity” (2015) Law Quarterly Review 53 –

77.

11 Idensohn, K ‘The nature and scope of employees’ fiduciary duties’ (2012) 33 ILJ 1539,

1539: Fiduciary duties ‘are duties of loyalty and self-denial that prohibit employees from

abusing their access or power in relations to their employer’s assets or affairs so to further

their own or any other person’s interests.’

11

which is made on the facts of each case.12 Whilst a fiduciary

employee must avoid a conflict of interests, ordinary employees are

under no such duty - in fact, the law recognises and regulates the

inevitable conflict of interests which is necessarily present. An

ordinary employee’s duty of good faith does not extend to an

absolute duty of undivided loyalty to the employer or require her to

subordinate her own personal interests to those of the beneficiary.

14 A legal duty to report the wrongdoing of a fellow-employee amounts

to a fiduciary duty. It will usually be contrary to the worker’s personal

interests to report on a fellow-employee (with whom she may have a

relationship, as a colleague, friend or member of the same trade

union or community). There may, in many cases, be a real risk of

adverse consequences, including retaliation. The imposition of a

legal duty in such circumstances requires that the worker forego her

own personal interests and that she act solely in the employer’s

interests and for its benefit, regardless of the potential negative

consequences to her.

12 Phillips v Fieldstone Africa (Pty) Ltd [2004] 1 All SA 150, para 27.

12

15 Courts in the UK, Canada and Australia distinguish between ‘mere

employees’ and ‘fiduciary employees’, and thereby distinguish the

duties attaching to each. A ‘mere’ employee does not stand in a

special relationship to her employer; she has no duty to speak, and

need not report on misconduct by fellow employees.13

16 To impose on an ordinary worker a duty to report misconduct under

such circumstances would be to deem every employment

relationship to be fiduciary in nature. This would be inconsistent with

the law as it stands, because fiduciary duties are separate and

distinct from the duty of good faith.14

13 Helmet Integrated Systems Ltd v Tunnards [2006] EWCA Civ 1735; Sybron Corp v

Rochem Ltd [1984] Ch 112: ‘[T]here is no general duty to report a fellow-servant’s

misconduct or breach of contract; Nottingham University v Fishel [2000] IRR 471, HC: ‘[T]he

essence of the employment relationship is not typically fiduciary at all. Its purpose is not to

place the employee in a position where he is obliged to pursue his employer’s interests at

the expense of his own.’

14 Idensohn (above) on the incorrect treatment in South Africa of the duty of good faith and a

fiduciary duty as identical.

13

Contrary to Public Policy

17 The legal convictions of the community do not support extending the

duty of good faith to encompass a duty to report the wrongdoing of

a fellow employee. To impose on an ordinary worker a duty to do

so, thereby subordinating her own interests in favour of an

overarching loyalty to her employer, intrudes upon her rights to

dignity, equality, fair labour practices, and freedom of conscience.

Such a requirement also undermines the strength of worker-

collectives, and thereby the entire statutory framework supporting

self-regulation.

Undermining the rights of South African workers

18 This Court has repeatedly emphasised the importance of context.15

Interpretation “will often necessitate close attention to the socio-

economic and institutional context in which a provision under

examination functions. In addition, it will be important to pay

15 Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC); Dawood

v Minister of Home Affairs 2000 (3) SA 936 (CC); Mohlomi v Minister of Defence 1997 (1) SA

124 (CC); Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC).

14

attention to the specific factual context that triggers the problem

requiring solution”.16

19 Most ordinary workers are black people whose poverty and low

economic status have their roots in colonial conquest and

systematic racial oppression.17 Astonishing inequality,18 coupled

with the profound social and cultural divide between workers and

owners, means workers are unlikely to experience undivided loyalty

to their employers – rather, they have more in common with their

fellow-employees, who like them live in townships, travel on trains

or taxis, and speak African languages.

16 South African Police Service v Public Servants Association obo Barnard 2007 (3) SA 521

(CC) para 20.

17 Assign Services v National Union of Metalworkers of South Africa 2018 (5) SA 323 (CC)

para 2.

18 Sidumo v Rustenburg Platinum mines 2008 (2) SA 24 (CC) para 72: ‘[Workers’]

vulnerability flows from the inequality that characterises employment in modern developing

economies.’ The ten-year passage aside, inequality continues to characterise employment in

South Africa. The latest inequality statistics which show that the poorest 20% in South Africa

consume less than 3% of total expenditure, while the wealthiest 20% consume 65% of total

expenditure, and continue to cite high Gini co-efficients

(www.worldbank.org/en/country/southaffrica/overview; www.statssa.gov.za/?p=10341); the

wage inequality which cites, just in manufacturing, the highest wages at R18344 per month

and the lowest at R6250 per month (https://tradingeconomics.com/south-africa/wages)..

http://www.worldbank.org/en/country/southaffrica/overview

https://tradingeconomics.com/south-africa/wages

15

20 Where relationships and attachments are rooted in communities,

betraying a fellow-employee is likely to invite censure by the

community – especially where the betrayal may attract the grave

consequence of dismissal, in our context of high unemployment.

The modern South African employer has no access to the social

systems in which workers live, and cannot influence these

outcomes. Indeed, the employer has neither the interest19 nor the

means to protect the worker from the consequences of betraying a

fellow-employee, and the law imposes no duty on the employer to

return the favour of the worker’s loyalty by so doing.

21 A worker witnessing wrongdoing by a fellow-employee may have

any of a number of valid responses - she may be neutral or

uninterested, believing that the employer can look after its own

interests; she may feel she has a moral duty to speak; or she may

even privately feel that the employer deserves its misfortune,

19 Le Monde Luggage CC t/a Parkwells Petje v Dunn NO (2007) 28 ILF 2238 (LAC) para 29:

‘The history of South African Labour Relations reveals all too often the contempt with which

employers treat employees whose dignity was all too often sacrificed upon the alter of an

avaricious desire to extract the maximum profit from the workforce, and powered by a racist

disregard for the interests of employees.’

16

although she wouldn’t engage in the wrongdoing herself. These

responses and assessments are personal to the worker: they arise

from and are informed by the worker’s conscience and values. If

she considers informing the employer about the wrongdoing, she

will assess the probable consequences which may include

retribution by the fellow-employee, or, potentially, a benefit to

herself (for instance, an opportunity to unseat a competitor for

promotion).

22 An ordinary South African worker is entitled to protect her own

interests, including her interest in keeping her job, whilst enjoying

the support of her community of fellow-employees and the

protection of her trade union. To impose upon her a special legal

duty to report the wrongdoing of fellow-employees interferes in her

freedom of choice, and exposes her to harm. It creates a conflict of

interests, and requires that the conflict be resolved in favour of the

employer.

23 A duty to report misconduct by a fellow-employee extends beyond

the duty to refrain from harming the employer; it requires the worker,

generally and in all instances, to take positive action to protect the

employer’s interests from harm perpetrated by a third party, in

17

relation to which the employee is ordinarily innocent – a strict and

single-minded loyalty, in other words.

24 The imposition of a duty to report the wrongdoing of fellow-

employees is inconsistent with our law:

24.1 It treats the parties unequally by preferring the interests of the

employer above and to the detriment of those of the worker.20

There is no reciprocal duty on an employer to look out for the

interests of the worker, and to inform her if something adverse

to her interests is on the cards;21

24.2 It conflicts with the constitutional right to fair labour practices

(a direct expression of the right to dignity in the workplace),22

which requires a balancing of interests;

20 Sidumo (above) para 74.

21 Sidumo (above) paras 72 – 74; South African Transport and Allied Workers Union v

Moloto NO 2012 (6) SA 249 (CC) paras 29; 86.

22 Kylie v Commission for Conciliation Mediation and Arbitration (2008) 29 ILJ 1918 (LC)

paras 14, 59; CEPPWAWU obo Gumede v Republican Press (Pty) Ltd (2006) 27 ILJ 335

(LC) para 45.

18

24.3 It infringes her freedom of conscience, which is also an aspect

of her dignity.

Undermining the statutory scheme of self-regulation by undermining the

collective

25 Our law recognises the conflict of interests inherent in the

employment relationship. 23 The state goes no further than to

enforce minimum standards, leaving it up to the parties to self-

regulate through struggle. Each side manages the other: workers

realise sufficient collective strength through trade unions to promote

their interests in relation to their employers. Employers, for their

part, promote their own interests through managing the workers. 24

23 National Education Health and Allied Workers Union v University of Cape Town 2003 (3)

SA 1 (CC) (‘NEHAWU’) paras 33; 40; Sidumo (above) para 66.

24 Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) para

66 (“First Certification Judgment”), on the different ways in which workers and employers

exercise power – the former through collectivising and ultimately a strike, the latter through

dismissal, employment of replacement labour, unilateral implementations of new terms and

conditions of employment and finally, lockouts. More generally: Section 1(d) of the Labour

Relations Act 66 of 1995.

19

If one side is strengthened at the expense of the other, this statutory

system cannot work. 25

26 Placing workers under a legal duty to assist or protect the

employer’s interests by reporting wrongdoing by fellow-employees

works against the statutory scheme, by strengthening employers at

the expense of trade unions. This:

26.1 treats the parties to the employment relationship unequally

despite the fact that it has now been accepted that the duty of

good faith is reciprocal in nature.26 It gives to employers an

additional source of protection (over and above their usual

powers to supervise, control, direct and discipline) without

imposing any reciprocal legal duty on employers to promote

workers’ interests;27

26.2 is at odds with the right to fair labour practices which requires

the balancing of interests, to bring about a greater fairness

25 Moloto (above) especially para 86.

26 Malik v Bank of Credit and Commerce International SA 1998 (AC) 21, 46; Council for

Scientific and Industrial Research v Fijen 1996 (2) SA 1 (A) 10.

27 Employers are free to act solely in their own interests provided they comply with the law.

20

and equality in the inherently disparate relations that

characterise the modern workplace.28 and

26.3 upsets the stability of the worker collective, as well as the

legitimate role of the trade union in the workplace (by, for

instance, transforming fellow-employees from potential

representatives to informers or witnesses at disciplinary

hearings).

THE ORIGIN OF THE MISCONCEPTION REGARDING THE DUTY OF

GOOD FAITH

27 That the duty of good faith might encompass a duty to report the

wrongdoing of fellow-employees first arose in Leeson Motors as a

possible way of dealing with a real problem of orchestrated

industrial sabotage. Since this case was decided, the idea of a duty

to report has been extended well beyond its intended purpose, to

facilitate the emptying out of entire workplaces, and to ensure a

28 NEHAWU (above) para 40; Sidumo (above) especially paras 74 – 75 to the effect that

labour law is supposed to rectify the imbalance in employment relations, which it cannot do

by offering preferential status to employers’ views and positions over workers’ .

21

level of control and subordination at odds with modern labour law

and constitutional principles.

28 This extension of the meaning of the duty of good faith to

encompass an overarching, single-minded loyalty giving rise to the

duty to report was made possible by the ‘loose use of imprecise and

ambiguous terminology’29 in previous decisions, especially those

characterising the duty as being one of ‘loyalty’ and ‘fidelity’ owed

by the worker to the employer.

29 The origin of this terminology can be traced to the law of master and

servant.30 But the master/servant relationship is quite distinct from

modern labour relations: masters were the protectors and

benefactors of their servants, who in turn were the masters’ property

and owed them utmost fidelity. If they betrayed their masters’ trust,

the servants could be imprisoned, starved or subjected to hard

labour.31

29 Idensohn (above) 1550.

30 Robb v Green (above).

31 Codified in South Africa under the Masters and Servants Act of 1856 and the Masters and

Servants Amendment Act of 1873.

22

30 The modern South African employer is neither the protector nor the

benefactor of the modern South African worker. Instead, the

transaction is commercial in nature: the worker sells to the employer

his capacity to work for a certain number of hours, and agrees to

submit to the employer’s direction and control during those hours.32

31 The implied contractual duty of good faith imposes on neither the

worker nor on the employer legal duties of overarching loyalty,

fidelity, faithfulness or ‘utmost’ trust and confidence. In reality, both

parties to the relationship are coerced:

31.1 the employer does not rely on the worker’s good will to serve

him faithfully; workers are coerced, not persuaded (by means

of rules, enforced through discipline and the spectre of

dismissal, and supervisors to put the worker’s productive

capacity to work);33 and

32 M.S.M Brassey et al ‘The new labour law: Strikes, dismissals and the unfair labour

practice in South African law’ (1987) Juta, 65, which explains that the modern, post-industrial

employment relationship has as its main purpose financial gain for both parties.

33 Sidumo (above) para 72, citing Kahn-Freund: ‘The relationship between an employer and

an isolated employee or worker is typically a relationship between a bearer of power and one

who is not a bearer of power. In its inception, it is an act of submission, in its operation it is a

condition of subordination, however much the submission and subordination may be

23

31.2 society does not rely on the employer’s goodwill to treat the

worker fairly: recognising the inequality of social power

inherent in the relationship, the legislature intervenes and

coerces the employer to observe minimum standards

governing working conditions (enforced by trade unions, and

through the CCMA and Department of Labour).

32 To the extent that our courts have cited ‘loyalty’ as an aspect of the

contractual duty of good faith, this is not an overarching loyalty

requiring the worker actively to promote the employer’s interests to

the exclusion of her own, but merely one that requires the worker to

take the employer’s interests into account34 (which duty stops short

of an obligation to report wrongdoing of a fellow-employee).

concealed by that indispensable figment of the legal mind known as the “contract of

employment.”’

34 Helmet Integrated Systems (above) para 26: ‘An employee owes an obligation of loyalty

to his employer but he will not necessarily owe that exclusive obligation of loyalty, to act in

his employer’s interests, and not in his own, which is the hallmark of any fiduciary duty owed

by an employee to his employer. The distinguishing mark of the obligation of a fiduciary in

the context of employment, is not merely that the employee owes a duty of loyalty, but of

single-minded or exclusive loyalty’.

24

33 It may be that, under certain circumstances, the law may fairly

impose upon workers a duty to disclose wrongdoing in the public

interest: where a hospital worker flouts hygiene protocol

endangering patients, or an airport technician conceals a mistake

that could lead to an aviation disaster, the legitimate interests of the

public may outweigh the individual interests of the worker, giving

rise to a duty to speak. That such duty might be owed to the public

is to be distinguished from the present case, in which the court a

quo has imposed on the worker a duty to protect the interests of an

employer, which are private commercial interests.

CONCLUSION

34 We conclude that, in South African law, a worker never has a duty

to disclose wrongdoing of a fellow employee, arising out of the

contractual duty of good faith.

25

35 It follows that:

35.1 an instruction requiring a worker to report wrongdoing by a

fellow employee would not be a lawful or reasonable

instruction; and

35.2 a contractual provision in terms of which the worker agrees to

report wrongdoing by a fellow-employee would be

unenforceable as being contrary to public policy, unfair and

unreasonable.35

THE DUTY OF GOOD FAITH IN THE CONTEXT OF A STRIKE

36 Even if this Court finds that the duty of good faith does (or may, in

certain circumstances) encompass a legal duty to report

wrongdoing by a fellow employee under normal working

arrangements, the Casual Workers Advice Office argues that such

legal duty cannot survive in relation to a strike because it would:

35 Reddy v Siemens Telecommunications 2007 (2) SA 486 (SCA).

26

36.1 undermine the vehicle through which workers amass sufficient

power to challenge the employer (without which there will be

no self-regulation through power-play);

36.2 impose a fiduciary duty on strikers, thereby advantaging the

employer party to the conflict, whilst increasing the peril to the

strikers;

36.3 limit strikers’ constitutional rights to equality, dignity, fair labour

practices, freedom of association, and freedom of conscience,

belief, thought and opinion; and

36.4 diminish the protection afforded to strikes, and to striking

workers, which protections are an incident of the constitutional

right to strike.

37 The legislative scheme recognises the inherent inequality of power

in the relationship between workers and employers, and promotes

self-regulation of the inevitable conflict. This self-regulation is made

possible by promoting and supporting workers’ ability to collectivise

in trade unions36 which can marshal the resources and the social

36 Trade unions have the express purpose of regulating worker-employer relations (section

213 of the Labour Relations Act), and collective, self-regulating endeavours are further

27

power to stand up to employers, backed by the weapon of the

protected strike.37

38 Strikes result when self-regulation through bargaining breaks down

– despite compulsory statutory conciliation. The role of employers in

reaching such an impasse is often underplayed. A strike is a

moment of crisis: workers’ lives and relationships are disrupted and

their livelihoods imperilled;38 they are not paid during strikes

(whereas employers can continue production, using replacement

labour). Strikes are inherently conflictual and socially volatile. In a

strike, workers must act as a collective, or be defeated.39

39 To require striking workers to report wrongdoing of fellow

employees, whilst they are on strike and acting against the

employer’s interests, is to undermine the very vehicle enabling them

to engage in ‘power play’ in the first place. Workers are thus put to

supported in other aspects of the legislation, particularly sections 12 to 18 dealing with

organisational rights.

37 Moloto (above) para 86; First Certification Judgment (above) para 66..

38 Moloto (above) para 33, noted that the public and the workers ‘suffer the brunt of the

disruption’.

39 First Certification Judgment (above) para 66; Moloto (above) para 61 on the associational

aspects of the right to strike.

28

an impossible election: they cannot act as a strong, empowered

collective whilst simultaneously ‘ratting’ to the employer on

wrongdoers in their midst. The duty to report during a strike

accordingly limits the right to strike by undermining the collective

carrying out the action.

40 The duty to report wrongdoing of a fellow-employee during a strike

will always be adverse to the striker’s personal interests40 and is

therefore a fiduciary duty. Imposing such a fiduciary duty on strikers

gives employers an additional layer of protection during the fragile

circumstances of a strike, whilst increasing the risk and peril to

workers.41

41 The additional constitutional rights referred to in our main argument

apply with even greater force during a strike, when a worker is not in

the workplace, is not at that time part of the workforce, is expressly

pursuing her own interests at the employer’s expense, and is doing

so as part of a collective. The constitutional rights to dignity,

freedom of association, and freedom of conscience, belief and

opinion, are unjustifiably limited by the duty to report during a strike.

40 Numsa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd 2018 (6) SA 240

(LAC) paras 101 – 102.

41 Dunlop (above) para 102.

29

42 Recognising such a duty opens the door to the mass dismissal of all

strikers whenever there is violence, whereas protection from

dismissal is the cornerstone of the protection afforded during

strikes.42

CONCLUSION

43 In conclusion, the Casual Workers Advice Office submits that:

43.1 the duty of good faith does not extend to encompass the

imposition of a legal duty on workers to report wrongdoing by

fellow-employees; and

43.2 if such a legal duty exists (or if it may arise in certain

circumstances) it cannot survive in the context of a strike.

SUZANNA HARVEY

BHAVNA RAMJI

11 February 2019

42 Moloto (above) paras 43; 52: Constitutional rights conferred without express limitation

should not be cut down by reading in limitations.


CASE NO: 202/2018


NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA OBO KHANYILE NGANEXI Applicant

and

DUNLOP MIXING AND TECHNICAL

SERVICES (PTY) LTD First Respondent

DUNLOP BELTING PRODUCTS (PTY) LTD Second Respondent

DUNLOP INDUSTRIAL HOSE (PTY) LTD Third Respondent

COMMISSION FOR CONCILIATION

MEDIATION & ARBITRATION Fourth Respondent

COMMISSIONER ALMEIRO DEYZEL N.O. Fifth Respondent

and

CASUAL WORKERS ADVICE OFFICE Amicus Curiae

AMICUS CURIAE’S SUPPLEMENTARY SUBMISSION

1

1. The amicus respectfully requests leave to make the following

supplementary submission:

An employer’s demand for information concerning misconduct

committed by other employees is a demand in respect of a matter of

mutual interest.

2. The amicus apologises for making this submission late. The written

submissions were due very shortly after the amicus was admitted,

and this legal point only occurred to counsel on Monday 25

February, during the course of working up the case.

SUZANNA HARVEY

CHAMBERS, CAPE TOWN

26 FEBRUARY 2019

in the constitutional court of south africa - SAFLII

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