Get your evidence sorted out

Get your evidence sorted out.

What should an employer do when there is theft of stock but no culprit can be identified? The answer is carry on investigating! This seems to be a better option than relying on risky principles such as “derivative misconduct” or “common purpose”, etc. where a whole group of employees is fired without there being proof of any single individual being involved in the theft.

In a bargaining council arbitration – NUMSA on behalf of Ntuli & Others and Argent Steel Group (Pty) Ltd – reported in the Industrial Law Journal, volume 34, 2013, page 1063, the arbitrator stated that the test for derivative misconduct was:

  • The employees must have known or acquired knowledge of the wrongdoing; and
  • The employees must have failed, without justification, to disclose that knowledge or take reasonable steps to help the employer acquire that knowledge.

Despite a lot of work having been done by the employer, the employer failed to establish “derivative misconduct”. The applicants were all awarded 6 months salary.

“Unpaid suspension can still be implemented as a punishment”

In a case before the Labour Court, suspension without pay was again found to be permissible and not contrary to the Basic Conditions of Employment Act. The case is reported at page 978 of the Industrial Law Journal, volume 34, 2013 – NUMSA & Others v Martin & East (Pty) Ltd.

The court re-affirmed that suspension without pay did not constitute an unlawful deduction in terms of section 19 of the Basic Conditions of Employment Act.

Therefore, not being paid during suspension is not a “deduction”. Section 19 protects wages that are due for services rendered. If no services are rendered then wages are not due.

Please note that we are talking about suspension as a disciplinary outcome and not suspension prior to a disciplinary hearing.

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