Have you ever come across the phrase “There is a common law duty on an employee to act in good faith towards their employer?”

It seems so straight forward, yet many employees miss the concept and find themselves in troubled water.

Common law and good faith

The Labour expert, John Grogan, phrases it as “[M]any disciplinary offences that have been held to justify dismissal overlap with breaches of the duties owed by employees to their employers under the common law: all flowing from the duty of good faith. For example, insubordination involves a breach of employees’ obligation to obey their employers; employees who steal breach their duty to act in good faith.”

Wikipedia defines good faith as ‘a general presumption that parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract.’

What is common law?

In its simplest form it refers to decisions made by judges through Court cases. For instance, in determining whether someone is guilty of desertion, there must be clear and unambiguous evidence to show the intention to abandon their employment.

The Law

Schedule 8 of the Labour Relations Act 66 of 1995 (LRA) provides a Code of Good Practice (Code) prior to dismissal. Item 7 of this Code sets the formula or framework in determining the severity of a breach or alleged breach.

This reads:

b)     if a rule or standard was contravened, whether or not —

                 i.          the rule was a valid or reasonable rule or standard;

                ii.          the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

              iii.          the rule or standard has been consistently applied by the employer; and

              iv.          dismissal was an appropriate sanction for the contravention of the rule or standard.”

Workplace Rules and Standards

The first point of reference in determining the existence of a workplace rule is the common law duty; the second is the Contract of Employment and/or the Employer’s Disciplinary Code/Policy.

As representatives we are no longer amazed to hear that employees/members did not read their Contract of Employment, never received a Contract of Employment, never received a Disciplinary Code/Policy, did not read their Disciplinary Code/Policy, or did not have access to their Disciplinary Code/Policy.

You have a duty to familiarise yourself with these documents and have copies readily available.

Ignorance of the rules is no excuse as most of the conduct defined in such a Code, Policy or Contract goes back to the common law duty of good faith. It remains your responsibility to familiarise yourself with the content of the internal Disciplinary Code/Policy.

Simple examples of the workplace rules are working hours; procedures when being off sick; dress code; general conduct towards co-workers and Management; substance usage/abuse; (in)subordination; theft.

Practical Example

In Moroke v Maksal Tubes [2003] 12 BALR 1321 (P) the precedent in regard to when absenteeism is absconding was set. In essence it was held that an employee absconds only if intending to abandon employment permanently. This is now common law.

Should the Employer’s Disciplinary Code hold that five days of absenteeism is dismissible, they will still have to answer to the common law precedent set, namely whether employee intended to abandon employment permanently.

Even though you must familiarise yourself with the Disciplinary Code, fairness dictates that common law plays a cardinal role in determining whether a breach of the workplace rules should result in dismissal. The courts determined that Disciplinary Codes are guidelines and not cast in stone unless it forms an integral part of your Contract of Employment.

Be proactive!

Be proactive, read and familiarise yourselves with your employer’s Disciplinary Code/Policy. Think before you do as ignorance is no excuse and breaching the common law duty to act in good faith might cause you to lose your employment or career!

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