By Wessel Brits: Senior Labour Advisor, MISA Legal Department
Does loyalty towards your colleagues protect you from disciplinary action if you fail to disclose information about their misconduct to your employer?
Forming bonds and friendships with colleagues in the workplace is inevitable, but what would you do when you witness your colleagues performing acts of misconduct? Will you ignore this and look the other way out of loyalty?
The short answer is: don’t, as it can lead to serious consequences. If you are aware of misconduct, and do not report it, you may make yourself guilty of derivative misconduct. This means that you were aware of misconduct, yet failed to report it, which can ultimately lead to dismissal.
The Labour Appeal Court defined derivative misconduct to be “the situation where employees possess information that would enable an employer to identify wrongdoers and those employees who fail to come forward when asked to do so, violate the trust upon which the employment relationship is founded.”
In the Hlebela matter, the Labour Appeal Court held the principle that an employee is bound implicitly by a duty of good faith towards their employer. This is breached when the employee does not speak up when they become aware that the business interests of the employer are being undermined. It was further held that a breach of the duty of good faith can justify dismissal.
Non-disclosure of knowledge relevant to misconduct, committed by fellow employees, is an instance of a breach of the duty of good faith.
In the same matter, reference was made to two specific elements in this type of misconduct. That is the “degree of seriousness of the wrongdoing” and the “effect of non-disclosure by a person in the position of that employee on the ability of the employer to protect itself against the given wrongdoing.”
So, if you see a colleague taking printing paper for private use and you do not report it, you may be guilty of derivative misconduct.
Be wise and report misconduct in the workplace as soon as you become aware of it. While this may be seen as being disloyal, it is the law. Chances are that your colleague will do the same should they see you doing something untoward.