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Collective misconduct
This form of dismissals carried the blessing of the Labour Appeal Court, which held a few years ago that an employer who suffered continuously under industrial sabotage perpetrated by unidentified employees, was entitled to dismiss all the employees on the shopfloor where damages occurred on the basis that the employees must have known who the perpetrators were and failed to come forward and identify them.
Recently the Court had to again consider a matter of collective misconduct. In 1999 Foschini started a stock-taking exercise at one of its stores. An investigation revealed severe shrinkage in excess of 28% of the stock, representing a loss of R207 000.00. There were five employees in the store and each employee was suspended and subsequently dismissed following a hearing.
In an arbitration it was found that Foschini had terminated the employees for a fair reason related to their collective misconduct. However, 2006 the Labour Court reviewed and set aside the arbitration award. As a result Foschini petitioned this and the matter landed before the Labour Appeal Court (LAC). The LAC then dealt with the question of whether the dismissal of the employees for ‘team misconduct’ was fair.
In this matter of The Foschini Group v Maidi & 4 others, after referring to a number of awards and court decisions, a reference was made to a earlier case in which the LAC stated the following; “… the Labour Appeal Court accepted that this type of matter presents a difficult problem for fair employment practices… “
The Court then had to consider in what circumstances it would be permissible to dismiss a group of workers where misconduct proceedings require that conduct be proved, but management is unable to pinpoint the perpetrator or perpetrators. The court then postulated two lines of justification.
The first is where an employee, who is part of the group of perpetrators, is under a duty to assist the employer in bringing the guilty to book. The second is where an employee has or may reasonably be supposed to have information concerning the guilty and his or her failure to come forward with the information may in itself amount to misconduct.
In this matter the Court re-confirmed that the relationship between employer and employee in its essentials is one of trust and confidence, and, even at common law, conduct clearly inconsistent with this essential warranted termination of employment. Failure to assist an employer in bringing the guilty to book violates this duty and may in itself justify dismissal. The court further held that this derived 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. Consequently, the LAC confirmed that the termination of the 5 former employees by Foschini was not unfair.
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