Mar 26,2010 / News / Legal Brief

Workers who keep silent about workplace theft or sabotage can be dismissed – individually or collectively – if they knew about the wrongdoing but turned a blind eye on it.

“Every employee has a legal duty to report misconduct perpetrated against their employer,” says Anastasia Vatalidis, head of the employment law practice area at Werksmans. “While employers should not interpret this obligation as licence to fire everyone when no one owns up or speaks out, it does mean employers are not powerless to act against theft or sabotage by unknown parties. Under certain circumstances, if you are unable to pinpoint who in a group of employees is causing recurring theft or damage, it can be permissible to dismiss the whole group.”

Firing an entire group of employees for misconduct by unidentified members of this group is known as “common purpose” dismissal, meaning that it can reasonable be inferred that everyone in the group was either involved in the misconduct or did not disclose it.

Vatalidis says, the principle of common purpose has once again been highlighted by a recent Commission for Conciliation, Mediation and Arbitration (CCMA) case, the outcome of which contrasts with that of a much earlier one although in both cases the CCMA and the Labour Appeal Court applied the same legal principles.

In the first case, heard almost 12 years ago, the Labour Appeal Court upheld the employer’s decision to dismiss 20 employees after a series of incidents in which customers’ vehicles were maliciously damaged.

In the second case, decided towards the end of 2009, the CCMA ruled in favour of the 20 female workers who were unfairly dismissed after a single incident of theft.

“The employers in both cases applied the common purpose argument but this was only upheld in the Labour Appeal Court matter,” Vatalidis says, referring to the 1998 decision by Judge Cameron in Chauke & Others versus Lees Service Centre trading as Leeson Motors. “The reason is that the circumstances of the two cases were very different.”

In the 1998 case, the employer, a firm of panelbeaters, had been the target of repeated sabotage by unidentified workers from within a group of employees responsible for repairing customers’ cars. “The vehicles would enter the production line and be repaired, only to emerge damaged again at the end of the line, with the paintwork scratched and so on,” Vatalidis says.

This happened repeatedly over about four months. Throughout this period, the employer, unable to pinpoint who was causing the damage, appealed to the group to come forward with the names of the culprits or with suggestions on how the problem could be resolved.

When no one came forward, the employer charged all the employees in the group with misconduct and dismissed them all.

According to Vatalidis, the Labour Appeal Court felt the mass dismissal was justified because of the following five factors:

  • The sabotage was confined to a small area and group, which always consisted of the same people.
  • The employees in the group worked at the particular point where the damage occurred all day and every day.
  • This was not a single act of sabotage but a number of recurring incidents. The incidents took place over a long period of time. This factor, together with the three above, meant that every person in the group must have witnessed at least once incident of sabotage.
  • The employer had repeatedly asked employees to come forward with names or suggestions on how to resolve the matter. The employees in turn had responded with complete silence.

“I think their silence was the employees’ undoing,” says Vatalidis. “If they were disgruntled with the employer, they did not say so or why. If they were afraid of coming forward, they did not voice this either, not even anonymously. They simply remained silent.”

The outcome of the more recent matter, the 2009 CCMA case involving SACCAWU on behalf of Matabako & Others versus Metro Great Octive, was very different.

This case involved the theft of 12 kilograms of Russian sausages and 12 polony sachets, which were discovered hidden in the ladies’ bathroom. Management confronted the workers, who then started accusing everyone else. When no individual stood out, the employer dismissed all 20 female employees who had access both to the meat and the ladies’ bathroom.

In coming to a finding, the CCMA commissioner looked at case history, specifically the Labour Appeal Court’s 1998 decision. He agreed that there were circumstances in which an employer could dismiss an entire group for derivative misconduct. “However, he found that two conditions must be met,” says Vatalidis. “Firstly, all the employees in the group ought to have be aware of the wrongdoing. Secondly, they must have failed to take steps to help the employer identify the culprit.”

These two conditions did not apply to the Metro Great Octive case, she says. “As the commissioner said, it is better to let a guilty person go free than to convict the innocent. Common purpose means that everyone was either involved in the theft or did not disclose it. The fact is that this was a single, isolated incident, and the employer was unable to prove all 20 employees in the group had been aware of it.”

Vatalidis says the two cases make it clear that employees have a duty to report misconduct when they become aware of it.

“But employers need to be very careful how they apply the principle of common purpose. If you can prove everyone was aware of the theft or sabotage but they said and did nothing, then dismissal is permissible. Bear in mind that this is difficult to prove from a single incident. The more often the incidents take place, and the longer the period, the more likely that more employees were aware and simply turned a blind eye.”