The sounds of silence: The evolution of the concept of derivative misconduct and the role of inferences
Authors Tarryn Poppesqou
Affiliations: Director, Futcher & Poppesqou Attorneys
Source: Industrial Law Journal, Volume 39 Issue 1, 2018, p. 34 – 50
In what circumstances may an employer dismiss a group of employees which includes the unidentified perpetrator or perpetrators of a proven misconduct? Is an employer entitled to draw inferences from circumstantial evidence and rely on those inferences in dismissing a group of employees where such misconduct has occurred? May an employee elect to remain silent when he or she has knowledge of conduct which may negatively impact the employer’s business? What rights and obligations do employees in such a group have? These are questions which have arisen and have been dealt with by our labour courts, resulting in a test for derivative misconduct which currently extends to a duty placed upon employees to come forward in the face of misconduct perpetrated by fellow employees.