The employment relationship is essentially built on trust and confidence with the employment contract as key in managing labour relations. The employment contract is the basis of the relationship between the employer and the employee. Therefore defines the terms and conditions as agreed upon between the parties and regulates their relationship. Furthermore the employment contract describes rules and responsibilities to be adhered to by both the employer and the employee.
What does the law say?
In terms of the employment relationship, both the employer and the employee have certain duties by law. Any conduct inconsistent with this, can lead to the termination of the employment relationship.
The employer’s legal duties:
- Receive the employee into service by providing the employee with a written employment contract, as well as according employees their rights in terms of applicable labour legislation.
- Provide the employee with work.
- Pay the employee’s remuneration.
- Ensure that working conditions are safe and healthy.
The employee’s legal duties:
- Render services.
- Perform according to the reasonable, lawful and attainable work performance standards set by the employer in terms of quality and quantity.
- Always act in good faith, be loyal and have the employer’s best interest at hart. This is known as the employee’s fiduciary duty.
The employee’s fiduciary duty in terms of trust and confidentiality
This fiduciary duty includes the following:
- The employee’s interests may not conflict with those of the employer.
- The employee may not use the employers’ property for personal gain
- The employee may not divulge confidential information of the employer to a third party.
It is important that employers inform employees of their fiduciary duty and the position of trust they are employed in. In addition, we advise employers to include offences relating to the breach of confidentiality and trust in the workplace’s disciplinary code. A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow. When these rules are broken the employer can apply progressive discipline (warnings).
In cases of severs misconduct the employer can proceed directly to a disciplinary hearing. In most cases regarding the breach of confidentiality and trust, dismissal as a sanction is appropriate. This is due to the fact that the offence has a direct impact on the root of the employment relationship which binds an employee to act in good faith and to further the employer’s interests. This misconduct can negatively impact the employment relationship, rendering trust irreconcilable as a result. Typical misconduct that impacts the trust relationship include:
- Extortion or corruption,
- Giving false evidence or false declarations,
- Theft or unlawful possession of property,
- Misappropriation and divulging or supplying confidential information.
Steps to follow
We advise employers to follow these steps to identify misconduct impacting on the employment trust relationship:
During the investigation the employer must establish whether the employee breached the trust relationship. The employer should also gather evidence in this regard and determine the seriousness of the offence, including (possible) consequences.
Consult with the employee
When consulting with the employee, the employer should determine if the offence was due to the employee’s negligence or with intent. It is important to give the employee the opportunity to present more information and explain the situation from his/her point of view.
Determine the sanction
The sanction is determined by the seriousness of the offence. Furthermore the employer must consider the facts of the case as every case has its own merits, to ultimately establish if the sanction is fair. It is important to note that the employer must prove on a balance of probability that the employee is guilty before imposing any sanction.
Take disciplinary action
An employer cannot dismiss an employee under any circumstances, without holding a disciplinary hearing. As a result to ensure that a fair procedure is followed and that there is substantive reason (proof) for the employee to be dismissed. The employer must take note to keep detailed records of employees’ misconduct and sanctions applied.
We strongly advise employers to implement proactive measures to combat misconduct referring to the breach of confidentiality and trust by following these guidelines:
- Ensure that all employees have written employment contracts that comply with applicable labour legislation. Also ensure that employees understand the content thereof.
- Use labour legislation to your benefit in drafting your employment contracts. By including clauses referring to confidentiality and a restraint of trade, the employer can proactively manage any possible future disputes. This will consequently save time and money. This clause can protect the employer in the future as his/her business develops.
- Ensure that your disciplinary code is relevant and up to date regarding offences and appropriate sanctions. Also ensure that all employees are aware of what the disciplinary code entails.
- Encourage employees to report dishonest conduct and co-workers. Every employee has the duty to act in good faith in the interest of the employer and report any misconduct by co-workers. When an employee is not guilty of an offence, but was aware of the misconduct and did not report it to the employer, the employee violated the trust relationship and can the employer take disciplinary action against such an employee.
- Ensure that every employee has a detailed job description to clarify his/her duties and the employer’s expectations.
Labour law is a huge business risk. Any business must manage labour risk in a proactive manner to ensure the sustainability and profitability. By implementing clear rules and guidelines friction and misunderstandings can kept to a minimum. This in turn promotes not only productivity but also an positive working environment.