Ever been blamed merely for being in the wrong place at the wrong time? The Constitutional Court case of Dunlop Mixing and Technical Services (Pty) Ltd v NUMSA & Others [2019] ZACC 25 highlights an important principle in the workplace: an employer cannot fire an employee just because they kept quiet or happened to be nearby when others caused trouble. In short: silence isn’t a crime, and assumptions aren’t facts. For employers, this is a reminder to treat staff fairly and ensure that any action taken is based on real evidence, not assumptions.

The above-mentioned case arose following a protected strike which took place in August–September 2012 where acts of violence were committed by employees. Dunlop dismissed 65 employees in three groups: (a) those identified as perpetrators, (b) those present but not active, and (c) those not identified at all. An arbitrator found the dismissals in group (c) to be unfair, but the Labour Court and Labour Appeal Court overturned this, saying the employees’ silence and failure to clear themselves or identify wrongdoers broke the duty of good faith. The Constitutional Court disagreed, ruling that forcing employees to report on co-workers without offering safety or protection in return would harm worker solidarity and weaken the constitutional right to strike.

Commentary on the judgment, such as Labour Guide’s article “Common purpose, derivative misconduct & dismissal after Dunlop”, explains that the decision narrowed the use of derivative misconduct, but gave new importance to the idea of common purpose. The Court in Dunlop ([para 46]) stated that employees can still be held responsible for collective misconduct even if they were not physically present, as long as there is sufficient evidence that they associated themselves with the wrongdoing before or after it happened, and that they had the necessary knowledge and intention.

This reasoning has influenced later cases, including NUMSA obo Dhludhlu v Marley Pipe Systems (2021), where the Labour Appeal Court upheld the dismissal of employees who did not take part in an assault but were found to have aligned themselves with it. The court looked at factors such as being present at the scene of the misconduct, carrying placards calling for the manager’s removal, staying at the scene, failing to help the victim, and celebrating afterwards. Together, Dunlop and Marley show that while derivative misconduct has been limited, common purpose has become a stronger legal tool for holding employees accountable in cases of group misconduct.

Before Dunlop, derivative misconduct allowed dismissal where an employee knew of wrongdoing and failed to report it, regardless of whether they intended it or associated with it. After Dunlop, the focus is on proving that an employee knew about the misconduct, intended it or accepted its possibility, and associated themselves with it either before or after the wrongdoing. Physical presence is not required, and association can be inferred from circumstantial evidence such as prior planning, remaining with the group, failing to distance oneself, or celebrating the outcome.

This change does not give employers free rein to dismiss “silent bystanders,” but it does give them a clearer path to prove responsibility when there is real evidence of group alignment.

Participation, presence and knowledge in collective misconduct each mean different things and carry different implications:

• Participation means actively taking part in the wrongdoing. This is the most direct, clear and strongest ground for liability.
• Presence means being at the scene while the wrongdoing happens. This alone is not enough, but if combined with behaviour that shows support or unwillingness / failure to distance oneself, it can suggest association.
• Knowledge means knowing about the misconduct before or after it happened. On its own, this is no longer enough after Dunlop, but when combined with intention and association (even if the person was not present) it may still create liability under common purpose.

The law now draws a sharper distinction between these categories, but still allows for collective accountability when knowledge and association are proven beyond mere proximity or silence.

The Dunlop case changed how collective misconduct is handled in South African companies. It made it clear that employees cannot be punished just for staying silent but can be held responsible if they take part, support or know about the wrongdoing. It is important to understand the difference between taking part, being there or just knowing what happened. This helps protect workers’ rights while also giving employers a fair way to deal with group misconduct.

Article written by Allen Stroebel

References:

https://labourguide.co.za/misconduct/common-purpose-derivative-misconduct-dismissal-after-dunlop

https://journals.co.za/doi/full/10.2989/CCR.2022.0004

https://www.saflii.org/za/cases/ZACC/2019/25.html