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 ronni@labourlawadvice.co.za 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: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za.