National Union of Metalworkers of South Africa obo Khanyile Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others

Employees of Dunlop embarked on a protected strike on 22 August 2012. From the outset the strike was marred by serious and escalating violence, including arson, petrol bombing, assaults, damage to property and intimidation, despite an interdict prohibiting violence. Dunlop dismissed all striking employees on 26 September 2012, relying on actual misconduct, common purpose and derivative misconduct. At arbitration, employees were divided into three categories: (a) those positively identified as perpetrators of violence; (b) those identified as present during violent incidents; and (c) those not positively or individually identified as present during violence. The arbitrator found dismissals of categories (a) and (b) fair, but held the dismissal of category (c) employees substantively unfair and ordered their reinstatement. The Labour Court and Labour Appeal Court set aside that finding, holding that category (c) employees were guilty of derivative misconduct for failing to exonerate themselves or identify perpetrators. NUMSA appealed to the Constitutional Court on behalf of category (c) employees.

Leave to appeal was granted. The appeal succeeded. The orders of the Labour Court and Labour Appeal Court were set aside and replaced with an order dismissing Dunlop’s review application. No order as to costs was made.

This is the leading Constitutional Court authority on derivative misconduct. It clarifies and confines the doctrine, rejecting expansive interpretations that impose a duty to self-exonerate or to disclose absent actual knowledge. The judgment protects the right to fair labour practices and the right to strike, particularly in the context of violent industrial action, and restores the primacy of individual proof of misconduct under the Labour Relations Act.