Derivative misconduct and forms thereof: Western Refinery Ltd v Hlebela 2015 36 ILJ 2280 (LAC)

Abstract

Western Platinum Refinery Ltd v Hlebela 2015 36 ILJ 2280 (LAC) ("Hlebela") required the Labour Appeal Court to grapple with difficult questions presented by a generic dilemma which confronts an employer who is faced with clear evidence of recurrent theft of precious minerals but is unable to identify the actual culprits, nor are the employees disposed or willing to co-operate with the employer in tracking down the perpetrator(s). Suddenly, the police informed the employer that an employee who had accumulated wealth was a person of interest in their investigations. However, they could give no information about the employee's being engaged, to their knowledge, in particular illegal activities. Hlebela answered the nagging question: what is the appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others or who has actual knowledge of information which the employee subjectively knows is relevant to unlawful conduct against the employer's interests? The categorical answer is that the employer should charge the employee with material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging a culpable non-disclosure.