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Monday, 22 January 2018

Collective guilt arises when an employer deems it appropriate/necessary to hold one or more individuals liable for the acts of others within 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 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 which 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 complement of its Lady Frere branch (which amounted to 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 complement 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.

Follow Tony on Twitter at @tony_healy

First published in The Star Workplace on 29 July 2015