Passive Employees and Failure to Assist in an Investigation: The Principles of Derivative Justification
AbstractDerivative misconduct (also referred to as residual misconduct) refers to as a situation where an employee possesses information that would enable an employer to identify wrongdoers. When the employee fails to come forward when asked to do so, they violate the trust upon which the employment relationship is founded and may justify dismissal. Substantive fairness has to do with the reason of the dismissal. The underlying principle of substantive fairness is that the sanction meted out to the employee must be commensurate with the misconduct of such employee. The approach involved a derived justification, stemming from an employee’s failure to offer reasonable assistance in the detection of those actually responsible for the misconduct. The justification is wide enough to encompass also those innocent of it, and make themselves guilty of a derivative violation of trust and confidence. Justice must not only be done but it must be seen to be done.
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