Abstract
This dissertation aims to critically analyse the doctrine of derivative misconduct and the duty to act in good faith between South Africa and New Zealand. This will be achieved through an analysis of the relevant legislation, case law, international law and relevant journals amongst these two countries. Derivative misconduct is an important concept which aims to discipline the employees who are reluctant in providing information that could assist in disciplining others. The Dunlop case serves as a starting point for the purpose of this study as it dealt with the derivative misconduct where the employee denied acting in good faith. The Constitutional Court defined derivative misconduct as an instance when an employee refuses to disclose details to identify the perpetrator of some misconduct. It is important to note that in South Africa, the duty to act in good faith stems from common law duties where the employees failed to act in good faith towards the employer.
The duty to act in good faith requires the employees to be the employer’s keeper, in the context of strike or any conduct threatening employer’s business. Thus, the relevance of SACCAWU and Others v Cashbuild where the mass dismissals were supported for stock losses even though individual culpability was not present. The developments through case law depicts that there is still uncertainty when employee’s failure to assist the employer may damage the employment relationship therefore making a derivative dismissal to be justified. This study aims to address this gap by adopting a comparative methodology of relevant rules to this notion. This include a consideration of best practices from both jurisdictions in considering strengths and weaknesses. Duties of reciprocity from the employer at that very least can guarantee the employee’s safety, before expecting them to come forward to disclose themselves.