CARMEL RICKARD: The danger of violating trust
'Hear no evil, see no evil' is not an option for employees during industrial action, the labour court has found
When strikes turn violent, what is management to do if workers refuse to give evidence about who was involved? For that matter, what if workers won’t speak up about what they know about other harm to a business — theft of property, for example?It’s an ongoing problem for management, unions and the courts. And the answer is emerging via the concept of "derivative misconduct" — behaviour that, while not the primary misconduct, is related to it, in that someone with knowledge of a serious problem will not give this information to the employer in circumstances where refusal to speak threatens the trust relationship between workers and management.The recent case of Dunlop Mixing v Numsa develops this concept further and should be required reading for management and unions, as well as for their members. It concerns a 2012 protected wages-related strike that was violent from the start. The commissioner who arbitrated a subsequent dispute over the dismissal of more than 100 workers found th...
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