Duty of Good Faith & Employment Law
Dishonest activities in the workplace are regrettably far too common. Employers constantly need to revise their security and surveillance systems to stay ahead of the latest schemes. But what if the employer picks up information from its systems or from someone else that that one of its employees may be involved in skulduggery which undermines its interests?
This is what happened at Western Platinum Refinery near Rustenburg. The mine had suffered unexplained losses of stock (valuable base metals) for several years. The local police gave them information about one of their employees whose lifestyle seemed a touch grander than his monthly wage could afford. He earned R14 000 a month – yet he owned a R582 000 house with a R200 000 bond – and he’d bought another house for R14 000 and four cars.
Derivative Misconduct
The legal principle involved in the case is “derivative misconduct” or “derived violation of trust and confidence”. An employee breaches the implied duty of good faith towards his employer if he is aware of but remains silent about information which undermines his employer’s business interests. The employee’s failure to disclose the information to his employer would be a breach of the duty of good faith and could justify dismissal.
The LAC judgement clarified the following elements it will consider to prove “derivative misconduct”:-
- Requires proof of actual knowledge of the wrongdoing;
- Requires proof that the non-disclosure was deliberate;
- Is made more serious by the degree of seriousness of the wrongdoing and the potential impact of the non-disclosure;
- Could be made more serious by the seniority of the employee involved;
- Need not be dependent upon a request for relevant information, as often the wrongdoing might not even be known to the employer.
TIP: The investigation should focus on these elements to determine whether there is enough reliable evidence to substantiate a conclusion that the employee has knowledge of illicit activities which undermine the employer’s business interests. If so, the employer should institute disciplinary action against the employee.
You may be interested in:
Workplace Investigations & Disciplinary Enquiry Services by Senior Labour Lawyer Patrick Deale.
Western Platinum Refinery Ltd v Hlebela and Others (JA32/2014) [2015] ZALAC
