Whistleblowing and the employment relationship
The employment relationship is essentially built on trust and part of an employee’s legal duties include the fiduciary duty to always act in good faith, be loyal and to have the employer’s best interests at heart. This also includes the employee’s duty to report any dishonest conduct of 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.
Typical misconduct in the workplace that can lead to whistleblowing include theft, fraud, moonlighting, alcohol or drug abuse, the divulging or supplying of confidential information and misuse of the employer’s property. We advise employers to implement a whistleblowing policy to encourage employees to divulge illegal, dishonest or irregular conduct of co-workers. Such a policy can also promote a greater sense of accountability in the workplace.
An employer may not discipline, demote, transfer, harass or dismiss an employee without cause where the employee has made a protected disclosure, as this action is likely to relate to the protected disclosure. However, disclosure by an employee of his own illegal activities will not be regarded as a protected disclosure and will disciplinary action be justified in such a case.
It is important that employers inform employees of their fiduciary duty and the position of trust they are employed in. In most cases regarding the breach of confidentiality and trust, dismissal as a sanction is appropriate as it impacts directly on the root of the employment relationship that 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.