n Stellenbosch Law Review = Stellenbosch Regstydskrif - Collective misconduct in the workplace : is "team misconduct" "collective guilt" in disguise?
|Article Title||Collective misconduct in the workplace : is "team misconduct" "collective guilt" in disguise?|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Affiliations||1 University of KwaZulu-Natal|
|Publication Date||Jan 2014|
|Pages||566 - 579|
Businesses routinely suffer massive stock loss and in many cases employers are unable to identify those responsible for the misconduct. The application of "team misconduct" in our law facilitates a method of effecting group dismissal without having actual proof that each individual employee is in fact guilty of either misconduct or poor work performance. I argue that "team misconduct" is really a euphemism for "collective guilt". An entire staff contingent can now be held responsible for the misdeeds of one or more employees. Innocence may no longer be a bar to an employee being found guilty of misconduct and dismissed. "Team misconduct" intertwines liability for misconduct with liability for incapacity and the need for proof that an employee has actually failed to meet a set target is dispensed with. Even while there is no evidence of individual wrongdoing an employee must exculpate himself failing which a finding of guilt is made. This reversal of onus violates the presumption of innocence. In the absence of common purpose or evidence of contravention of the reciprocal duty of good faith, legal justification ascribing guilt on all employees merely because some in their midst may have committed the offence lacks merit. "Team misconduct" strips employees of their constitutionally guaranteed right to fair labour practices.
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