On 22 August 2019, members of NTEU engaged in a protected strike. During the course of the weeks-long strike, several acts of serious violence, intimidation and damage to property were alleged to have occurred. As a result, UFH (employer) dismissed the workers who had been involved in the strike. Sixty-five of these workers were not positively and individually identified as being present when the violence was committed, but were dismissed nonetheless for derivative misconduct. NTEU disputed the fairness of these dismissals and successfully saw the workers reinstated after an arbitration process. UFH then appealed the arbitration award at the Labour Court. Both the LC and the LAC held that, in the present case, there was a duty on the employees to assist their employers identify the perpetrators and that, by remaining silent, the employees made themselves guilty of derivative misconduct. The LC set aside the arbitration award and the majority in the LAC confirmed the order of the LC.

Violent strikes not only affect employers but also have a detrimental effect on employees who do not participate in the strike.The perpetrators of these acts typically hide themselves in the crowds. Frustrated by the difficulty in identifying these perpetrators and the group's failure to expose them, the employer is tempted to simply "get rid of the whole lot of them". Are employers entitled to do this? Are employers precluded from fairly dismissing an employee in terms of the LRA for a reason related to the employees' misconduct during a lawful strike?,

state the derivative misconduct in our labour jurisprudence.