Derivative misconduct and the reciprocal duty of good faith: employee silence in identifying perpetrators of misconduct.
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The reciprocal duty of good faith is recognised in our South African labour law which requires employees to not behave in a manner that is detrimental to an employer’s enterprise and should at all times remain faithful and loyal in continuing employment within the business. The reciprocity lies in an employer providing job security and remuneration for work done in furtherance of the business. A breach of the duty of good faith can result in dismissal where an employee merely remains silent in circumstances which calls upon them to divulge pertinent information that could lead to the detection of the perpetrators to the primary misconduct. Employers rely on the notion of derivative misconduct wherein they argue that there had been a breakdown in the trust relationship and draw inferences of guilt attributed to those silent employees in that they knew or ought to have known whom the actual culprits were and make themselves look guilty because of this silence. Due to employers being not able to identify the actual culprits, they in turn dismiss all employees said to be in the vicinity of the impugned misconduct. However, the Constitutional Court has now added that in order for employers to rely on the notion of derivative misconduct, they need to show reciprocity on their part as well. Actually expecting employees to come forth and divulge pertinent information in misconduct investigations, and not act passive in circumstances which requires them to do more, is asking a bit too much of them without providing some sort of protection in return. Protection in these circumstances would be to provide assurance that they would not face victimisation in the workplace by ratting on their fellow peers. This would prevent any injustice to those employees who may actually be innocent and not have any information, but merely remain silent in such circumstances. New Zealand has also codified the principle of good faith in their legislation. South Africa still relies on the common law when applying the principle of good faith. It is submitted that from the investigations conducted, many scholars are of the opinion that this concept is rather complex and to have it codified would actually cause much more uncertainty. Having it codified would merely provide a guideline, however, the courts would still rely heavily on the common law to provide structure to the concept with the courts dealing with the concept on a case by case basis depending on the facts of the case.