“There is something that you feel inside … when that song is being sung,” Goodwill Duma once explained about singing songs during a strike.
“Like what?” responded advocate AJ Dixon. “Like you want a bit of violence?”
Dixon’s line of questioning formed part of his gruelling cross-examination of Duma on behalf of the Dunlop group of factories at the Commission for Conciliation, Mediation and Arbitration (CCMA) in late 2013.
“We have to have a stick when we sing a song … blah, blah, blah. What is the real reason why a striker needs a stick?” pressed Dunlop’s advocate as he sought to establish if Duma had been aware of any violence during a strike at the factory a year earlier, in 2012.
The CCMA reinstated Duma, along with 64 of his colleagues, when Dunlop could not prove he had taken part in or witnessed any violence during this strike.
But according to a Labour Appeal Court judgment on 17 July 2018 – which supported a Labour Court ruling setting aside the CCMA decision – Dunlop had the right to assume the workers knew about the violence, even if the company couldn’t prove that they did.
By not informing the company about the violence, so the reasoning goes, the workers were guilty of “derivative misconduct”, for which Dunlop ultimately dismissed them.
Almost seven years after the Dunlop strike, Numsa is appealing the Labour Appeal Court’s decision in the Constitutional Court today, where deliberations over Duma and his colleagues promise to have far-reaching consequences for South Africa’s workers.
Witnesses to violence?
On 22 August 2012, a week after police officers gunned down striking mine workers (some of whom carried sticks) in cold blood in Marikana, Duma and 162 of his fellow workers – 107 of them Numsa members – embarked on a protected strike.
It is difficult to establish how many workers were on the Dunlop picket line. Witness accounts range from between 40 and 50 to “more than 100”. One witness says that the number changed “by the hour”, but that “the average, on any given day, was in the region of 30”.
Almost immediately, the strike turned violent. Allegations against the workers included arson, stone-throwing, death threats scribbled on a billboard and two petrol bombs launched into the homes of non-striking workers. The Labour Appeal Court later called the strikers’ actions a “catalogue of barbarism”.
But being on strike and being on the picket line are two different things. Only some of the strikers became violent during the Dunlop strike, and not all the strikers were present when the violence took place.
Duma gave various reasons during his CCMA cross-examination as to why strikers wield sticks. One reason was that “there are some songs that require that we do carry sticks”. Another was that “we were showing that we are there to fight for something that we could not get”, referring to higher wages. None of his reasons included violence.
Numsa offered, through its lawyers, to assist Dunlop in identifying violent strikers.
There is no evidence that Duma, or any of the other 64 reinstated workers, were present during the strike violence or that they know who committed the violence. There is only evidence that the 65 workers were on strike.
A ‘duty to rat’
According to the Labour and Labour Appeal Courts, however, this is enough. Once a company proves that workers took part in a strike, and that there was violence during that strike, it has the right to assume those workers know who committed the violence.
The courts went further to say that the 65 workers were obliged to come forward and clear their names by providing this information to Dunlop.
Failing to come forward constitutes “derivative misconduct”, or a breach of what Judge Kate Savage called a “duty to rat” in her dissent to the Labour Appeal Court.
The non-profit Casual Workers Advice Office – admitted as an amicus curiae to advise the Constitutional Court – included a blunt explanation of the principle in a recent pamphlet addressed to workers: “You can be fired for not being impimpi [an informer] at work.”
Shift in responsibility
Derivative misconduct has its origins in the duty of good faith that workers owe their bosses. It was first developed in an 1895 decision by the Queen’s Bench, which found that “there is involved in every contract of service an implied obligation … on the servant that he shall … by all reasonable means in his power protect his master’s interests”.
There will be an element of déjà vu at the hearing today.
Judge Edwin Cameron, who introduced derivative misconduct into South Africa’s common law during his time on the Labour Appeal Court bench in the late 1990s, will be among the judges deciding on the limits of its applicability during strikes.
The Labour and Labour Appeal Court’s judgments that resulted in Duma’s dismissal, however, expanded on Cameron’s initial suggestion. What was once a duty on workers to report misconduct by others has become a duty on workers to exonerate themselves of misconduct. Workers who are innocent of misconduct are now obliged to prove their innocence.
Numsa says this obligation only arises in particular circumstances and cannot be applied generally. Had its members acted in Dunlop’s best interests during the strike by coming forward with information, the union says, they would have compromised their own safety by exposing themselves to violent elements of the strike. Doing so would have instead constituted a “duty to put oneself in harm’s way”.
The Casual Workers Advice Office says the duty of workers to rat on each other, which it calls “a relic of the law of master and servant”, does not exist in any context as it undermines workers’ interests while promoting those of their bosses. This compromises the checks drafted into South Africa’s labour legislation as counterbalances to the inequality between workers and bosses, according to the office.
But Dunlop says these arguments would result in the erosion of trust between bosses and workers, ultimately compromising what it calls “the morality and humanity of society”.
While the company concedes that dismissing employees without proof of their misconduct is unacceptable, it says derivative misconduct is an “equitable method of giving an employer justice where an unlawful group of employees have rendered themselves liable for dismissal without being identified”.
Dunlop says one way in which workers can discharge their duty of good faith to their employer is to explain why they did not come forward with information. Gladys Xulu, a striking Dunlop worker who was not present for the duration of the strike, attempted to raise such a defence.
Xulu was the sole employee to take the opportunity to appeal against her dismissal at a hearing organised by Dunlop on 3 October 2012. The company would later state that the purpose of the hearing was “to determine which people we should not have dismissed”.
At the hearing, Xulu said she had not come forward with information regarding violence during the strike for fear of intimidation, the same reason she continued to refuse to give the names of those involved.
In spite of her coming forward, Dunlop did not immediately re-employ Xulu, a move the company later described as “an oversight on our part”.