The Duty of Good Faith Towards An Employer And The Duty to Disclose

5 Feb, 2016

In the case of Western Platinum Refinery Ltd v Hlebela & Others (2015), the Labour Appeal Court confirmed that an employee who is bound implicitly by a duty of good faith towards the employer, breaches that duty by remaining silent about knowledge possessed by the employee regarding the business interests of the employee being improperly undermined.

Non-disclosure by an employee, who is innocent of the primary misconduct, is a breach of the duty of good faith. Such a breach may justify dismissal depending on the seriousness of the primary misconduct and the effect on non-disclosure by a person in the position of that employee on the ability of the employer to protect itself against the given wrongdoing. The appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others but has not disclosed that knowledge would be to charge the employee with a material breach of the duty of good faith, particularising the knowledge allegedly possessed by the employee and alleging a culpable non-disclosure.