Picture: Chris Collingridge/African News Agency (ANA)

Johannesburg - The National Union of Metalworkers of SA has told the Constitutional Court that workers should not be dismissed for refusing to tell on their colleagues as this practice is inherently dangerous and risky.

Numsa is fighting for 65 of its members fired for derivative misconduct after a 2012 strike at Dunlop’s three associated companies in Howick, KwaZulu-Natal.

Derivative misconduct is misconduct where innocent workers are dismissed for not revealing the identities of their colleagues involved in committing the acts of misconduct during strike action to their employer when, in fact, they have information to identify the perpetrators.

It has been found that derivative misconduct is essentially a breach of the duty of good faith and the culpability of the actual perpetrators is attributed to innocent employees too.

But Numsa insists that workers should not be dismissed for derivative misconduct because they fear being seen as informers and risk their lives.

The union wants the apex court to decide the nature and duty on employees to inform on other employees committing misconduct and whether or not there is a duty.

A total of 107 Numsa members went on strike in August 2012.

According to Dunlop, it had direct evidence of incidents of violence and harassment during the month-long strike.

After a disciplinary hearing, 29 employees were dismissed for specific misconduct as well as derivative misconduct while the remaining 78 Numsa members were dismissed for derivative misconduct.

The Commission for Conciliation, Mediation and Arbitration (CCMA) later concluded that the dismissal of 42 of the striking employees was both substantively and procedurally fair.

The 65 employees, the subject of Numsa’s appeal to the Concourt, were all found guilty of derivative misconduct and dismissed. This group of workers was reinstated by the CCMA but its decision was overturned by the Labour Court in May 2016 and Numsa’s appeal was unsuccessful at the Labour Appeal Court in July.

Numsa now wants the highest court in the land to declare that the dismissal of the 65 employees was unfair and order that they be reinstated as the CCMA had ruled. 

The Star