Many businesses deal with groups of employees who commit disciplinary infractions.
In such cases employers may elect to institute collective disciplinary action against the employees involved.
There are two types of mass misconduct, one being “team misconduct” and the other being “collective misconduct”.
“Team misconduct” as coined by Dr. J .Grogan, exists where the culpability of employees involved in the misconduct is indivisible. In situations where “Team Misconduct” is present, it is unnecessary to prove each individual’s part in the misconduct, derivative misconduct or common purpose .
In Chauke & others v Lee Service Centre CC t/a Leeson Motors the Employer instituted disciplinary action and subsequently dismissed its employees, working on the shop floor where the misconduct occurred, en masse. The Labour Appeal Court found that the Employer, had acted substantively and procedurally fairly, as it could identify exactly in which part of its operation the misconduct took place.
The Labour Appeal Court concluded that there are two justifications which may be taken into account when an employer wishes to initiate collective disciplinary measures:
- Where an employee is under a duty to expose the group of perpetrators to the employer; and
- Where an employee had known, or should reasonably have known of the misconduct and the identity of the perpetrators, and failed to inform the employer.
“Collective misconduct” occurs where a number employees make themselves guilty of the same misconduct at the same time, such as an illegal strike. These employees are identifiable and the employer can take action against the perpetrators without having to follow the above guidelines.
An employer must further take heed of the audi alterem partem rule, whereby the employees are given an opportunity in which answer the allegation against them. As the facts against each of the employees will be the same, it is advisable to let the group appoint one member who will voice their concerns and position.
It should be remembered that, should the group be found guilty, the same sanction must be given to each employee, as different sanctions may constitute procedural unfairness.
Ian Mc Laren