“The only people who don’t want to disclose the truth are the people with something to hide.”- Barrack Obama
This question arises often in the workplace and employees are faced with a serious conundrum. Do I tell my employer, or should I just keep my nose out of my fellow colleague’s business?
To keep the answer short and simple – yes, you must! By failing to disclose any knowledge you have of acts of misconduct, by your fellow employees, to your employer is in itself an act of misconduct. As such, you too can be held liable for withholding pertinent information from your employer! Such acts, and/or omission to act, whilst privy to the acts of misconduct by another in the workplace, breaches your common law obligation of good faith owed to your employer, which could lead to a breach of the trust upon which the employment relationship is founded.
Therefore, if you know something about your colleague’s wrongdoing and you don’t bring it to the attention of your employer, you can be held accountable for those actions.
The concept of derivative misconduct was discussed in the matter of Chauke & Others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC) ,wherein it was stated that “this approach involves a derived justification, stemming from an employee’s failure to offer reasonable assistance in the detection of those actually responsible for the misconduct. Though the dismissal is designed to target the perpetrators of the original misconduct, the justification is wide enough to encompass those innocent of it, but who through their silence make themselves guilty of a derivative violation of trust and confidence.”
Derivative misconduct is founded on the concept of the duty of good faith; and trust forms the foundation of the employment relationship between employer and employee. In the matter of Dunlop Mixing and Technical Services (Pty) Ltd and Others v National Union of Metalworkers of South Africa (NUMSA) obo Nganezi and Others  ZALCD 9, the court held that an employee is implicitly bound by a duty of good faith towards their employer and such an employee breaches that duty if they remain silent about the knowledge they possess regarding the business interests of their employer being improperly undermined.
Fiduciary or contractual good faith obligations
If you, as an employee, hold information regarding acts of misconduct committed by your fellow employees, concealment of such information can be tantamount to a breach of the duty of good faith towards your employer.
MISA previously posted an article on Duty of Good Faith wherein it stated that ‘the only inference you can draw in the employment relationship is that the common law duty of good faith places an obligation on you to act honestly (free of deceit; truthful and sincere) and lawfully (not in contravention) with the purpose to uphold the contract of employment/relationship.’
The Constitutional Court confirmed that there is a common law duty on employees to act in good faith and there rests a reciprocal common law duty on the employer of fair dealing with its employee. In National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others (CCT202/18)  ZACC 25; 2019 (8) BCLR 966 (CC); (2019) 40 ILJ 1957 (CC);  9 BLLR 865 (CC); 2019 (5) SA 354 (CC) (28 June 2019), the Court stated that the reciprocal duty of good faith should not, as a matter of law, be taken to imply the imposition of a unilateral fiduciary duty of disclosure on employees. The Court further stated that in determining whether, as a matter of fact, a unilateral fiduciary duty to disclose information on the misconduct of co-employees form part of the contractual employment relationship, caution must be taken not to use this form of indirect and separate misconduct as a means to easier dismissal, rather than initially investigating the participation of individual employees in the primary misconduct.
Is it only my duty to bear The Duty of Good Faith?
Often employees are apprehensive to get involved for fear of what may happen to them, in their personal capacity, should the perpetrator of the misconduct become aware of the disclosure to their employer.
Rest assured MISA members, based on the Constitutional Court case above, there rests a duty on your employer too: not only should your employer follow due diligence and investigate the alleged misconduct fully and to the best of their ability; but they must protect you, as an employee, from undue influence from your fellow colleagues who committed the acts of misconduct.
Therefore, not only does there rest a duty of an employee to disclose any acts of misconduct committed by his fellow employees, same must be accompanied by a reciprocal duty on the part of the employer as well.
This reciprocal duty shall serve to protect your individual rights and further guarantee your safety prior to disclosing any information about who committed the alleged misconduct.
As stated in our previous article above, you are bound by a duty of good faith. If you know who did it and have the information to the acts of misconduct, do not be deliberate in your non-disclosure as you may find yourself breaching the duty of good faith and may be found guilty of derivate misconduct, which may lead to your dismissal.
Remember, MISA is just a phone call away.
Kindly utilise the following e-mail addresses and links for assistance during this time:
Employer UIF/TERS Submissions UIFClaim@ms.org.za
Legal/Labour-related enquiries Legal@ms.org.za
Legal Reception 011 476 3920
MISA Benefit claim-related enquiries Claims@misa.org.za
Any other enquiries Info@ms.org.za
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