Num obo Besent v Grogan NO (RSA Geological Services, division of De Beers Consolidated Mines Ltd) (JA30/08) [2010] ZALAC 12 [2010] JOL 25713 (LAC) (1 June 2010) per McCall AJA [Davis JA and Hendricks AJA concurring]

The Labour Appeal Court provided some answers to the following tricky questions:

  • Does the Protected Disclosures Act 26 of 2000 impose a duty on employees to disclose information within their knowledge about any wrongdoing of fellow employees ?
  • What should happen to employees who remain passive in circumstances where their failure to offer reasonable assistance during an investigation may cause the business to suffer a loss ?
  • What should happen to employees who fail to tender innocent explanations during an investigation and do they through their silence violate trust and confidence ?
  • Does wilful non-cooperation constitute ‘association’ with the actual culprits and what is meant by ‘residual misconduct’ ?
  • What is the test – ‘knew or could have acquired knowledge’; ‘knew or must have known’ or ‘may reasonably be supposed to have information’ ?
  • Does the refusal to undergo a polygraph test in itself prove that employees should be responsible for wrongdoing, or at least having conspired with those who did, or had something to hide ?