Wednesday, July 17, 2019

An employee cannot be expected to spill the beans about colleagues implicated in incidents of misconduct unless the employer has played its part by protecting that employee’s rights.

This is the crux of an important recent Constitutional Court judgment that should have employers moving swiftly to revise company policies if these unilaterally require employees to disclose information about their peers.

The judgment, delivered on 28 June 2019, ends a long-running legal standoff between the National Union of Metalworkers of South Africa (NUMSA) and Dunlop Mixing and Technical Services. The ruling, in favour of NUMSA, makes it clear that when it comes to disclosing information about incidents of misconduct, employers can no longer place the ‘duty of good faith’ solely on the shoulders of employees. 

Duty of good faith is not unilateral

Previously, our courts have endorsed the position that an employee who fails to disclose knowledge of misconduct committed by other employees towards the employer could be disciplined (including dismissed) for ‘derivative misconduct’. The rationale was that by refusing or failing to disclose such knowledge, an employee would be in breach of the duty of good faith.

However, the duty of good faith should be reciprocal, not unilateral, according to the latest Constitutional Court judgment.

The judgment concerned the action taken against a group of Dunlop employees who were dismissed in 2012 on the basis of derivative misconduct.

In August of that year, over 150 employees of Dunlop embarked on a protected strike that turned violent. Eventually, all of the employees were dismissed: some for being positively identified as committing violence; some for being identified as present when the violence took place; and some who were not identified as being present when the violence was committed but failed to disclose any information on who the perpetrators of the violence were.

In relation to the last group of employees dismissed on grounds of derivative misconduct, Dunlop argued that they had participated in the strike and therefore had knowledge of the perpetrators of the violence. Omitting to disclose such information constituted a breach of their duty of good faith, the company said.

This was challenged by the employees’ representative NUMSA, who argued that no derivative misconduct had been established and that the legal duty of good faith ought to have been reciprocal. At the very least, Dunlop ought to have guaranteed the employees’ safety before expecting them to come forward to disclose information.

Both the Labour Court and Labour Appeal Court had agreed with Dunlop and confirmed that the dismissal of the employees on grounds of derivative misconduct was fair. By contrast, the Constitutional Court held that the dismissal of these employees was unfair. 

Employer has a reciprocal, concomitant duty

In essence, the Constitutional Court has confirmed that the duty of good faith in the context of an employment relationship is reciprocal. It said an employee’s duty to disclose knowledge ‘must be accompanied by a reciprocal, concomitant duty on the part of the employer to protect the employee’s individual rights, including the fair labour practice right to effective collective bargaining'.

The Constitutional Court also noted the importance of worker solidarity in the context of a strike. It highlighted that this would be undermined by requiring employees to disclose information without any reciprocal obligation on an employer’s part, such as providing guarantees for safety and protection, before, when and after the disclosures.

As the Court put it: ‘Circumstances would truly have to be exceptional for this reciprocal duty of good faith to be jettisoned in favour of only a unilateral duty on the employee to disclose information’.

Effectively, what this judgment means is that employers can no longer dismiss employees who refuse or fail to disclose information, without the employer abiding by its own duty of good faith towards the employees.

While strike action will probably be the main context for applying the principle of a reciprocal duty of good faith, it could potentially apply to any type of misconduct where an employee exposes themselves to possible threat for disclosing information.

Employers should waste no time in ensuring that their employment policies, where relevant, reflect the reciprocal duty of good faith.