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 firstname.lastname@example.org 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: email@example.com. Go to: www.labourlawadvice.co.za.