Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of South Africa (NUMSA) obo Nganezi and Others (D345/14) [2016] ZALCD 9; (2016) 37 ILJ 2065 (LC); [2016] 10 BLLR 1024 (LC) (11 May 2016)

Parties

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

1. 1 Whether the dismissal of employees for derivative misconduct was substantively and procedurally fair.
2. 2 Whether the failure of striking employees to come forward and identify perpetrators or exonerate themselves constitutes derivative misconduct.
3. 3 Whether the inference can be drawn that all respondent employees were present during acts of misconduct and thus under an obligation to assist the employer.

Ratio Decidendi

The court found that the third respondent erred by confining derivative misconduct solely to the failure to identify perpetrators, ignoring the breach of trust inherent in the employment relationship. The evidence established that all respondent employees were present during the strike and acts of misconduct. Their failure to come forward, either to identify perpetrators or to exonerate themselves, constituted a breach of trust and derivative misconduct. The applicants repeatedly requested information, and the employees were aware of this obligation. The silence of the employees, in the face of overwhelming evidence and opportunity to respond, justified their dismissal for derivative...

Court Disposition

Application for review granted; paragraphs (a), (b), and (c) of the arbitration award are set aside and replaced with a finding that the dismissals were substantively and procedurally fair.

Orders

• Paragraphs (a), (b), and (c) of the third respondent's award dated 16 March 2014 under case reference KNPM 2439 – 12 are reviewed and corrected by deletion and substitution with an order that the dismissals of those persons whose names appear in paragraphs (a), (b), and (c) were substantively and procedurally fair.
• There is no order as to costs.