People have a tendency to resist getting involved in matters that do not affect them directly. This tendency also permeates the workplace. Not many employees are willing to report on the wrongdoing of their fellow employees. Whatever the reasons, this makes it very difficult for employers to eradicate illegal or dishonest practices in the workplace.
Can an employer discipline an employee for failing or refusing to disclose information about the illegal activities of a colleague? On the one hand there is legislation such as the Prevention & Combating of Corrupt Activities Act, 12 of 2004, which provides, inter alia, that senior members of management must report to the SAPS instances of theft, fraud or corruption involving an amount in excess of R100 000. Failure to do so constitutes a criminal offence. On the other hand, the Protected Disclosures Act, 26 of 2000 provides protection against victimisation for employees who disclose irregular or criminal activities in terms of that Act. But do employees have a general duty to 'blow the whistle' when they acquire information or knowledge about the illegal or dishonest activities of colleagues?
Such a general duty exists under our common law in the form of the employee’s duty of good faith towards the employer. Common law generally refers to all legal rules not found in legislation. Common law imposes a number of duties on employees, of which the duty to act honestly towards the employer is generally regarded as a cardinal duty. It includes:
- a prohibition on competing with the employer
- non-disclosure of confidential information belonging to the employer
- misappropriation of the employer’s property
- in short, any conduct that destroys the relationship of trust that is supposed to exist between employer and employee.
The courts and arbitrators have held that honesty in the employment context does not merely mean refraining from criminal acts; it embraces any conduct involving deceit. Failure to supply the employer with information regarding the unlawful conduct of colleagues also falls in this category.
A good example of a case where this principle was applied is the arbitration award in NUM v RSA Geological Services. In this instance a number of employees were dismissed for refusing to provide the employer with information about who was responsible for disposing of property belonging to the employer. The arbitrator, a respected senior practitioner, upheld the dismissals. He stated that if employees possess information that could enable their employer to identify wrongdoers, and those employees fail to disclose it upon request they violate the trust upon which the employment relationship is based and may be dismissed. However, the employer would have to prove either that the employee knew or ought to have known of the wrongdoing and failed, without justification, to disclose that knowledge to the employer; or failed to take reasonable steps to help the employer acquire that knowledge.
Especially for employers who experience high levels of dishonesty in the workplace, it may be advisable to introduce a specific rule requiring employees to disclose information about illegal or dishonest activities at work, whether in the form of theft, fraud, corruption or the like, and to make the rule widely known. In addition, an accessible procedure should be put in place that will allow employees to disclose information without fear of retribution.
Barney Jordaan of Maserumule Employment Consultancy for www.labourwise.co.za
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