COLLECTIVE guilt arises when an employer deems it appropriate or necessary to hold one or more individuals liable for the acts of others in a group.
The doctrine of common purpose was originally sourced from the field of criminal law the essence of which, as defined in Saccawu obo Madika & 4 others v Pep Stores (Case No NP1848-01) is “that each member of the group is held individually liable for his or her own actions as a member of the group acting in furtherance of a common purpose”.
Grogan (2002) submits that in the event that employees “are found to have actively associated themselves with the result and shared the perpetrators… frame of mind… the guilt of the perpetrator extends to them”.
A number of collective guilt cases were referred to the Industrial Court in the past, and similar cases have been adjudicated by both the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court.
One such Industrial Court matter, which drew much attention at the time, was NUM vs Amcoal Collieries Ltd t/a New Denmark Collieries (1989) 10 ILJ 733.
In this matter, the court took a particularly dim view of the concept of collective guilt. The court disapproved of collective guilt in the strongest terms by stating in the judgement that: “In passing, the court wishes to observe that the concept of collective guilt is wholly repugnant to our law. Any policy in terms of which all the employees of any group or persons must bear collective punishment for the wrongdoings of some of the members is unacceptable to this court.
“It runs counter to the tenets of natural justice and is a violation of the well-known principle that the person is presumed to be innocent until proven guilty. There is a failure of justice even if a single innocent person is presumed to be guilty and made to suffer with the rest.” Subsequent cases have, however, indicated that collective guilt is indeed a concept that cannot be rejected outright. One such case was Saccawu and Pep Stores (CCMA Arbitration: Case No EC3035) in which the employer dismissed the entire staff of its Lady Frere branch (numbering five employees) for poor work performance arising from stock losses. In this case, however, the stock losses experienced at the branch were, according to the commission, “so glaring that it could not possibly have escaped the attention and knowledge of every member of the staff”. The commissioner referred to the above Industrial Court case (NUM vs Amcoal), but nonetheless found the dismissal of the entire staff to have been fair in the circumstances. There is little doubt that all employees who omit to bring an act of misconduct, of which they are aware, to the attention of an employer, may themselves be liable for dismissal.
As noted in Numsa obo Reginald Chuene & 5 others v Irene Village Fuel Station t/a BP Irene (MIPT16735), “in NSGAWU v Coin Security (1997) 1 BLLR 85 (IC), the court warned that the doctrine of common purpose is not to be used as an excuse for imposing collective punishment or to be confused with the concept of collective guilt. Common purpose must still be proved. There must be evidence to show that all the applicants associated themselves with the conduct of the principal offenders.” In Saccawu obo 93 others v Massmart T/a Jumbo Cash & Carry (Pty) Ltd (GAJB29113-14), it was noted that “In Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of SA on behalf of Khanyile and Others, Gush J dealt with an instance where the bulk of the striking employees simply remained silent, with a defence being presented by individual employees who in turn simply denied and misconduct, breach of picketing rules or an interdict. The learned judge held ‘It is entirely reasonable for an employer to expect protected industrial action to be accompanied by orderly conduct by those employees who have embarked on the industrial action. This is particularly so in circumstances where the employer has not only entered into a picketing rules agreement with the representative trade union regulating the conduct of striking employees but has as a result of the conduct of the employees been forced to obtain an interdict restraining the striking employees from committing misconduct. That strikes are often visited with violence and misconduct does not justify such acts.
“Despite the fact that tension often runs high during industrial action the level of misconduct and violence and the duration thereof in this matter reinforces the necessity for employers to be able on to rely on the duty of good faith towards the employer and that the employee breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employer being improperly undermined. This duty must extend to the opportunity to exonerate oneself.”
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Call 0861 115 375 or visit www.tonyhealy.co.za