Article Sidebar
Article Details
This work is licensed under a Creative Commons Attribution 4.0 International License.
Copyright in all material published in PER/PELJ vests in the author, provided that authors grant, by submission of their contributions, permission that their contributions may be shared and adapted without restriction. An author furthermore agrees that the same contribution may not be published elsewhere without the written permission of the editor.
Anyone gaining access, electronically or otherwise, to a contribution to PER, may quote from such contribution, use the intellectual content thereof, share and adapt it, but subject to the following conditions:
you must give appropriate credit, provide a link and indicate if changes were made; and
the copyright of the author(s) may not be infringed in any way.
Main Article Content
Derivative misconduct and forms thereof: Western Refinery Ltd v Hlebela 2015 36 ILJ 2280 (LAC)
Abstract
Western Platinum Refinery Ltd v Hlebela 2015 36 ILJ 2280 (LAC) ("Hlebela") required the Labour Appeal Court to grapple with difficult questions presented by a generic dilemma which confronts an employer who is faced with clear evidence of recurrent theft of precious minerals but is unable to identify the actual culprits, nor are the employees disposed or willing to co-operate with the employer in tracking down the perpetrator(s). Suddenly, the police informed the employer that an employee who had accumulated wealth was a person of interest in their investigations. However, they could give no information about the employee's being engaged, to their knowledge, in particular illegal activities.
Hlebela answered the nagging question: what is the appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others or who has actual knowledge of information which the employee subjectively knows is relevant to unlawful conduct against the employer's interests? The categorical answer is that the employer should charge the employee with material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging a culpable non-disclosure.
Keywords: Culpable non-disclosure; derivative misconduct; duty of good faith; collective misconduct; team misconduct; irregular wealth acquisition
