Yes, you can be dismissed for not telling your boss about a colleague’s misconduct according to the latest case before the Commission for Conciliation, Mediation and Arbitration (CCMA).
The issue before the CCMA was whether the dismissal of an employee who failed to inform an employer of suspicious conduct concerning missing money was substantively fair. The CCMA found that the failure of the employee to inform an employer of their business interests being improperly undermined, constitutes derivative misconduct for which an employee can be dismissed, says Jacques van Wyk, director and Andre van Heerden, senior associate at Werksmans Attorneys.
The employer in this matter conducted business in the retail sector. A representative of the employer discovered that money was missing due to a shortfall amount deposited at a bank at one of its retail locations.
The missing money was ultimately found in a bank bag in a drop safe, it was not recorded elsewhere. The colleague of the employee in this matter admitted that she placed the unregistered money bag in the drop safe and informed the employee that she had.
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Failure to report misconduct
However, the employee failed to report her colleague’s suspicious conduct to management and as a result, the employee was charged with derivative misconduct, which lead to her dismissal, but the employee denied having any knowledge of the conduct and contended that her dismissal was substantively unfair.
During the proceedings in the CCMA, the employee conceded to knowing of the suspicious conduct of her colleague. The question before the CCMA was therefore whether there had been an obligation on the part of the employee to disclose this knowledge, Van Wyk and Van Heerden explain.
The Commissioner found that the employee was indeed under an obligation to inform the employer of the suspicious conduct she was aware of and relied on the test of the Labour Court in another matter that required:
- the information or knowledge that the employee fails to disclose must be “actual knowledge”
- the non-disclosure must be deliberate
- the seriousness of the primary misconduct and the rank of the employee who fails to disclose, at most effects the gravity of the nondisclosure
- a request to disclose information need not be made for the duty to disclose to be triggered, but if a request is made and is refused, culpability is aggravated; and
- the employee does not need to have a common purpose with the perpetrator.
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Duty of good faith
In the other matter, the Labour Court held that an employee is implicitly bound by a duty of good faith towards an employer and that remaining silent about business interests that are improperly undermined is a breach of this duty.
“The failure to disclose the misconduct informs that the dismissal of the employee had been derivatively justified in relation to the primary misconduct,” van Wyk says.
Van Heerden adds that in this case, the employee also refused to disclose her knowledge of the matter, which amounted to an aggravating factor in favour of her dismissal.
The CCMA affirmed that holding a common purpose with the colleague did not have to be established and the dismissal of the employee was therefore found to be substantively fair.
Van Wyk says this is an important case as it illustrates that employees hold a responsibility to act honestly, even if it means such honesty exposes the misconduct of another employee.