Our laws and courts provide strong protection for the right of employees to go on strike, and are quick to shield participants in a protected strike from any unlawful action against them by their employers.

But this is subject to the important provision that strikers (and their unions) must always act within the law, which includes the fundamental requirement that strike action must at all times be peaceful and non-violent.

And, as a recent Labour Court decision shows, even employee’s innocent of any direct involvement in misconduct can be held liable if they refuse to assist in investigating it.

A strike turns violent

  • A wage dispute led to industrial action in the form of a protected strike
  • The strike was characterised by violent confrontations, intimidation, harassment, and attacks on property
  • Despite a court interdict against this serious misconduct, it continued unabated
  • The employer then dismissed not only those strikers directly involved in the violence, but also those found guilty of “derivative misconduct” for their failure to identify the actual perpetrators when asked to do so.

Trust, good faith, and the duty to identify offenders

The Labour Court, in upholding all these dismissals as being fair, set out and applied our law on “derivative misconduct” as follows:

  • The nature and essence of the employment relationship is based on trust and good faith
  • A breach of this good faith can justify dismissal
  • Non-disclosure of knowledge relevant to misconduct committed by fellow employees is a breach of the duty of good faith
  • Those strikers who, although innocent of actual perpetration of misconduct, consciously chose not to disclose information known to them (they remained silent when repeatedly asked to identify the perpetrators) were guilty of derivative misconduct and their dismissals were both substantively and procedurally fair.

For professional legal advice contact Labour Law Director, Tracey Mouton, at Goldberg & de Villiers Inc. on 041 5019800.

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