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Employees must put employer’s interests first

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Employees must put employer’s interests first

26th May 2017


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South African labour legislation gives employees a plethora of rights against the employer including the right to:

  • Join trade unions
  • Go on strike
  • A fair reason and procedure for dismissal
  • Protection from unfair labour practices and unfair discrimination
  • Minimum wages in many cases
  • Sick leave, holiday leave, maternity leave and compassionate leave
  • Overtime pay
  • Representation at CCMA

On the other hand labour legislation gives employers few rights; and those that they do have are very restricted.


An important employer right is that of fiduciary duty. This means that the employee may not advantage himself/herself unfairly at the expense of the employer. For example, the employee may not:

  • Place him/herself in a position where his/her interests conflict with those of the employer
  • Misuse the employer’s trade secrets
  • Give a third party the employer’s confidential information.

In deciding on the extent of fiduciary duty that an employee has the courts consider a number of factors including:

  • The degree of freedom and the opportunity that the employee has to exercise discretion in making and executing business decisions
  • The extent to which the specific circumstances open the employer to abuse of the employee’s discretion
  • The extent to which the employer relies on the employee for expertise and judgement in conducting the business
  • The extent to which the employee is in a position of trust.

Clearly, the more junior the employee the less these fiduciary factors are likely to prevail. However, the line between who is a senior employee and who is not and the line between who is in a position of trust and who is not are blurred. Therefore, every employer should:

  • Build in checks and balances that prevent the abuse of power
  • Inform all employees of their fiduciary duties in relation to their positions of trust
  • Make sure employees at all levels know the seriousness of breach of their fiduciary duties
  • Take swift, fair and consistent action against employees who breach their fiduciary duties
  • Obtain expert legal advice before acting against suspects.

To attend our 29 June 2017 seminar in Johannesburg on CHANGES AND DANGERS IN LABOUR LAW 2017 please contact Ronni at or on 0845217492 or (011) 782-3066.

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: Go to:


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