By Elsabe de Villiers
Pretoria Branch
Collective guilt
When a large or unknown number of employees have engaged in collective misconduct, and the actual perpetrators cannot be identified, the employer may be tempted either to select some employees for dismissal as an example to others or to dismiss all emloyees who could conceivably have been involved, whether innocent or otherwise, in the hope that the guilty employees will be caught in the net. The Industrial court rejected this view in the case of NUM v Durban Roodepoort Deep Ltd (1987) 8 ILJ 156 (IC) and termed the concept of 'collective guilt' as "wholly repugnant to our law..."
Does the prohibition of collective punishment mean that employers are powerless in situations when misconduct occurs, but the actual perpetrators cannot be identified? In certain cases, courts and arbitrators have accepted that employers may act against employees even in the absence of proof linking them directly to the commission of misconduct.
Derivative misconduct
Situations sometimes arise in cases of mass misconduct in which there is no evidence against any specific employees. One way out of this problem is for the employer to rely on 'derivative misconduct'. The Labour Appeal Court suggested this concept in the case of FAWU v Amalgamated Beverage Industries (1994) 15 ILJ 1057 (LAC) . A large group of workers assaulted a 'scab' worker during a strike. The actual perpetrators could not be identified. All workers who had clocked in and were therefore known to have been in the vicinity when the attack occurred were charged with assault. None came forward during the disciplinary hearings to claim their innocence or to identify the perpetrators. The court held that the employee's silence justified the inference that they had either participated in the assault or supported it. Their dismissal was therefore justified on the basis of common purpose.
A question often asked is whether the employees must have known of the primary misconduct at the time, or whether it is sufficient if they acquired the knowledge later? It seems that information acquired any time before the employee is actually charged with derivative misconduct must be disclosed.
Common purpose
This term originated from the criminal law. It applies when two or more people associate themselves in a course of conduct that results in a criminal act by one or more of them but where, by chance, the others do not physically perform the actions which brought about the criminal result. Common purpose must still be proved. There must be evidence to show that all the accused employees actively associated themselves with the conduct of the principal offender(s).
In the case of NSGAWU v Coin Security [1997] 1 BLLR 85 (IC) the employer confused the concept of 'common purpose' with 'collective guilt'. The doctrine of 'collective guilt' has been rejected as not forming a part of South African law. The doctrine of 'collective guilt' involves punishing an entire group for the misconduct of some of its members, even though there is no evidence to prove common purpose. To justify a dismissal on the basis of common purpose, the employer must at least prove on a balance of probabilities that the employees concerned had in fact associated themselves with the deeds of the principle offenders.
Team liability
In the case of SACCAWU & others v Cashbuild Ltd [1996] 4 BLLR 457 (IC) an entire staff was held accountable for continued stock losses ('shrinkage') that cannot be linked to misconduct by a particular employee. The justification in such cases has generally been accepted as being operational. Employees are given clear instruction to control stock. It is their responsibility to implement controls. If they fail to do so, the employer cannot afford to retain them.
The arbitrator in the case of FEDCRAW v Snip Trading (Pty) Ltd [2001] 7 BALR 669 (P) commented on the term 'team misconduct'. The essence of 'team misconduct' is that the employees are dismissed because, as individual components of the group, each has culpably failed to ensure that the group complies with a rule or attains a performance standard set by the employer.
Whether employees can be held accountable for stock losses without proof that they actually had a hand in the disappearance of the stock depended on whether the employees' work entailed activities which, if not properly performed, would result in stock loss. The employer must, before disciplining employees prove:
- that stock loss in a store exceeded a particular level, and
- that procedures were in place which, if followed, would have reduced the loss.
It is accordingly unnecessary in cases of 'team misconduct' to prove individual culpability, derivative misconduct or common purpose, i.e the three grounds upon which dismissal for collective misconduct can otherwise be justified.
If the employees claim that they had followed the rules, or that they were unable to do so, or that they could not be held individually accountable for the error that caused the loss, the burden then shifts to the employees to prove these claims.
Sanction
The requirement of consistency also raises its head in cases of dismissals for group misconduct. Should all employees receive the same sanction simply because they were all involved in the same act of misconduct? One argument is that consistency demands that employees who commit the same offence should be treated equally. The same sanction ought therefore to be imposed. This is especially true where the employees were acting in concert in pursuit of a common goal. The counter argument which we support is that fairness requires considerations of the circumstances of each individual and that different sanctions may be imposed on the basis of such factors as the length of service and the employees disciplinary records.
Thus in accordance with the matter of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) all aggravating and mitigating circumstances of each individual employee must be taken into consideration when deliberating over the appropriate sanction.
If you are suffering from stock shortages due to theft and are frustrated in not being able to identify the culprits, contact LabourNet. Your LabourNet consultant will investigate your situation and provide your business with strategies to combat the theft and put a stop to your losses.
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