Derivative misconduct: Ignorance does not necessarily mean innocence

As an employee, you might witness or become aware of certain unacceptable or improper behaviour of one of your colleagues, but not report it due to 'not wanting to get involved' or fear of getting into trouble for whistleblowing. However, did you know that you can be dismissed for knowing about someone else's misconduct, but not notifying your employer? This is what we refer to as 'derivative misconduct'.

Derivative misconduct can be defined as knowing about an employee engaging in misconduct but not notifying your employer thereof. You become guilty of misconduct through association (your misconduct 'derives' from the misconduct of others). This means that although you may not have been directly involved, you can be seen as equally guilty.

As an employee, you might be wondering how disciplinary steps can be taken against you for something you did not even do. The answer is quite simple - as an employee you have a 'duty of acting in good faith' towards your employer. A duty of good faith means that you are expected to always act honestly, faithfully, and in the best interests of your employer. Knowing about someone who is intentionally causing harm and damage to the operations or business interests of your employer, and not disclosing this, means that you could be seen as intentionally taking a step back and allowing the misconduct to take place. This could be considered a breakdown in trust between you and your employer.

As an employer, if it has come to your attention that someone could potentially be guilty of derivative misconduct, there are certain things you need to be aware of and be able to prove in order to take disciplinary action against him/her:

1. The information or knowledge that the employee fails to disclose must be factual and detailed knowledge.
2. Non-disclosure must be deliberate/intentional.
3. The seriousness of the primary misconduct of the perpetrator (person actually committing the misconduct) and the rank of the employee who fails to disclose it, affect the seriousness of the non-disclosure.
4. The employee always has a duty to disclose any knowledge of misconduct in the workplace, whether they are specifically instructed to do so or not.
5. If the employee is requested to disclose information, such if they are asked if they know anything about a case of misconduct that took place, and they refuse, it could make the case of derivative misconduct against them even stronger. In this case, you as an employer must be able to prove that he/she did in fact know about misconduct in the workplace and refused to report or comment on it.
6. The employee who is guilty of not disclosing the misconduct does not need to have anything in common with the perpetrator.
7. The employee's excuse or explanation for not disclosing the misconduct of others does not make them not-guilty of the misconduct, but may be used to reduce the severity of their culpability.

Derivative misconduct is an acceptable and valid ground for dismissal. Employees must remember that honesty is always the best policy. Being open and honest about the behaviour of others in the workplace that you witness or become aware of, could save you your job. Employers are advised to encourage employees to come forward if they have information, to create a working environment in which employees feel comfortable to communicate openly and honestly, and to always protect and maintain the anonymity of whistleblowers.

For more information on the above, contact us: tuane@empoweredpeople.co.za / anja@empoweredoeple.co.za