Collective Workplace Misconduct - You’re all fired!
South Africa Commercial Catering and Allied Workers Union and others v Makgopela and others [2023] (LAC), a recent LAC decision, concerns collective workplace misconduct in circumstances in which no individual employee has been identified as having committed particular acts of misconduct, but are nevertheless all dismissed.
In short, around January 2016, during a stock-take, stock losses were detected at one of the Employer’s branches, exceeding the Employer’s acceptable shrinkage level of 0.4% of sales. The following month, a further stock-take revealed stock shrinkage, equivalent to 1.5% of sales. A ‘shrinkage workshop’ was held with the employees the same month. The employees were interviewed and provided with a questionnaire to complete in which they were asked to indicate the cause of stock losses, as well as encouraging the employees to use an anonymous tip-offs line. Resultant of the continued stock losses, the employees were issued with final written warnings valid for a period of 12 months for failing to control shrinkage collectively or individually. After June, further stock losses were uncovered, in the amount equivalent to 3.36% of sales. A second shrinkage workshop was held, in which a number of deficiencies in the employer’s systems were identified by the employees in the shrinkage questionnaires completed by them. Following the workshop, the employees were charged with collective misconduct/team misconduct and were called to a disciplinary hearing, in which all employees were found guilty and accordingly dismissed from their employment.
The employees referred an unfair dismissal dispute to the CCMA. The commissioner found that the employee’s had contravened the employer’s rule, failed to disclose the cause of stock losses and that had they performed their duties as required, there shouldn’t have been stock loss of such a large amount of money, and accordingly found their dismissals to be both procedurally and substantively fair. Aggrieved by the commissioner’s award, the employees took the matter on review to the Labour Court. The employees contended that the commissioner’s award did not fall within the bounds of reasonableness arguing that the commissioner committed an error of law in that he mischaracterised the dispute as one concerned with derivative misconduct. The Labour Court found the arbitration award to be reasonable and dismissed the review application.
On appeal, the LAC highlighted four different approaches to collective misconduct discernible in our law.
The first, is that employees may be charged collectively, with reliance on the doctrine of common purpose as the basis on which the misconduct was committed. Dismissal for misconduct based on common purpose arises as a consequence of deemed participation of the employee as part of the group which committed the primary misconduct. Involvement with the primary misconduct is proved through application of the general principles required to prove common purpose.
The second form of collective misconduct in our law is that of “team misconduct”, wherein a number of employees are disciplined collectively as members of a team for the same misconduct, on the basis that the individual responsibility of individual employees in the team cannot be determined, in such a case it is not a necessity to prove the existence of common purpose. In cases of team misconduct the employer dismisses a group of workers because the responsibility for the collective conduct of the group is indivisible.
The third form is that of “derivative misconduct”. In such a case, the dismissal of an employee may be derivatively justified where misconduct was committed by others who have not been identified, in circumstances in which the employee was expressly requested by the employer to disclose information known to the employee, pertinent to the wrongdoing, but consciously elected not to do so. Reliance on derivative misconduct has been recognised to be premature until all avenues of some form of individual and culpable participation in the collective misconduct are excluded.
The forth form is where dismissal for collective misconduct may arise in circumstances in which the individual culpability of employees cannot be determined as a result of which there exists an operational rationale for their dismissal.
The LAC held that the Labour Court erred in its finding. It held that to find that the dismissal of all employees, one of whom has almost thirty years of service, was fair, was a decision a reasonable commissioner, on the material before him, could not reach. It held that as much as the Labour Relations Act gives meaning to the constitutional right to fair labour practices, our law does not allow for determination of guilt simply by association. Where team misconduct is relied upon there must exist either a factual basis or sufficient grounds for inferring that all employees were indivisibly culpable as members of the team for failing to ensure compliance with the employer’s rule. A reliance on generalised facts, arising from a scant investigation into the alleged misconduct, is not sufficient ground on which to infer that collective responsibility exists.
Importantly, this case highlights the caution to be adopted when reliance is placed on collective misconduct as a basis for dismissal. Workplace discipline must at all times be fair and just.
We trust that you found this article informative, please email info@hjw.co.za for assistance with dismissal disputes.
By Alexi Rosenzweig, candidate attorney, and Rowan Bauer, attorney, working in the employment law practice area at HJW Attorneys, a boutique law firm based in Fourways, Johannesburg.
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.