When strikes turn violent, what is management to do if workers refuse to give evidence about who was involved? For that matter, what if workers won’t speak up about what they know about other harm to a business — theft of property, for example?
It’s an ongoing problem for management, unions and the courts. And the answer is emerging via the concept of "derivative misconduct" — behaviour that, while not the primary misconduct, is related to it, in that someone with knowledge of a serious problem will not give this information to the employer in circumstances where refusal to speak threatens the trust relationship between workers and management.
The recent case of Dunlop Mixing v Numsa develops this concept further and should be required reading for management and unions, as well as for their members. It concerns a 2012 protected wages-related strike that was violent from the start. The commissioner who arbitrated a subsequent dispute over the dismissal of more than 100 workers found that a "dangerously volatile situation" existed, including attacks on vehicles, and with company premises under siege.
Scores of workers were later sacked for direct involvement in the violence or for derivative misconduct or a combination of the two. At arbitration the commissioner found some of those sacked should not have been dismissed as there was not enough evidence that they knew who were involved.
Dunlop took the decision to the labour court, where Judge David Gush considered the evidence and the exact content of derivative misconduct, as well as what it meant in this strike.
Numsa argued there was insufficient evidence to find derivative misconduct because the particular workers were not mentioned in evidence before the arbitrator. Gush, however, stressed that the essence of derivative misconduct "lies in the failure of the striking employees to come forward and assist the employer" in identifying perpetrators.
For Dunlop, the dismissed workers were guilty of derivative misconduct through a breach of the trust relationship: they failed to come forward and identify the perpetrators, or they failed to exonerate themselves by explaining they were not present and could not identify them. This last is an important consideration, obviously not factored in by the union.
From the start of the violence, the employer required the union to obtain details from striking workers as to the identity of the perpetrators. The arbitrator found, as a fact, that all striking employees knew they were "required" to provide this information.
But they did not do so, saying that if they were not identified as being present during the violence "they had no obligation whatsoever to come forward either to exonerate themselves or identify the perpetrators".
In this they fundamentally mistook their duty, said Gush. They did not argue that they were not present during the misconduct: they simply remained silent. While the right to remain silent was sacrosanct in criminal matters where an accused person was presumed innocent until found guilty, "this is not a criminal investigation and the presumption of innocence does not apply".
Employees could not "passively remain silent in the face of an opportunity to assist in the investigation".
The employment relationship was based on trust and good faith, he said. Keeping silent "was a breach of that trust", yet these employees refused to speak even though there was no suggestion that they were not there. It was entirely reasonable for an employer to expect orderly conduct during protected industrial action.
Given the implications of derivative misconduct it’s crucial that employees understand that they cannot simply remain silent. Failure to come forward with information or even self-exoneration may well be regarded as grounds for dismissal.