Page 72 - Q&A 2019/2020

Can I be fired for my colleagues’ wrongdoing?

Jeanette Monahadi
January 2019
“I work a till at a big general store. The owner discovered that some of the
other till operators were overcharging customers and pocketing the difference.
I knew they were doing this, but felt it was none of my business and did not
tell my manager. Now they want to fire me because I should have blown the
whistle on the others. Surely I can’t be fired if I did nothing wrong?”

The short answer is that you can be fired. This is based on the premise that
the nature of an employment relationship is one of trust which requires an
employee to show utmost good faith towards the employer. Accordingly, our
labour laws recognise that an act which is inconsistent with this element of trust
may warrant disciplinary action, and where serious cases of misconduct are
involved, could even warrant dismissal.
Employees, in addition to performing their duties diligently, are therefore
required to protect the business interests of their employers, which can extend
to adopting an active approach in helping employers to detect perpetrators of
misconduct against the business.

Accordingly, in circumstances as you have described and where one or more
employees are aware of wrongdoings by other employees and which have not
been reported to management, the principle of “derivative misconduct” comes
into play. This principle recognises that the innocent employees who are silent
about wrongdoings of their guilty colleagues may make themselves guilty of a Labour
derivative violation of trust and confidence if the employer can show that the
employee probably “knew or must have known” about the actual misconduct.

Our Labour Court recently also recognised that an inference/conclusion that
an employee knew or must have known about a wrongdoing can be drawn
from evidence that the employee was there during the time when the wrongful
act was committed. There may also be circumstances where an employee is
obliged to exonerate himself by informing the employer that he was not present
when the misconduct occurred, particularly where the employee is reasonably
expected to be aware of the wrongdoing. Examples hereof include striking
employees who were present or participated in a strike that resulted in violence
and where the evidence shows a high probability that they were aware of the
violence or of the perpetrators of the violence. Our courts have recognised that
there is a duty on such employees to exonerate themselves by reporting the
information available to the employer when presented with the opportunity to
do so.
Of course circumstances differ from case to case and it would be advisable
that you seek the help of a labour specialist to assist you with an assessment of
the merits of your employer in dismissing you for the actions of your colleagues.

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