Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (JR164/20)  ZALCJHB 319 (3 November 2023)
A recent ruling by the Labour Court held that an employee violated her fiduciary duty to her employer by not disclosing her concurrent full-time employment.
This case amplifies loyalty to one’s primary employer and compliance with both the law and policies in the workplace which enables a transparent and conflict free working relationship.
The employee had full time employment with one employer (the first employer) and then took up further full-time employment with another employer (second employer) with the same working hours and a higher salary.
The first employer became aware of the concurrent employment with the second employer and charged the employee with gross misconduct for taking up concurrent full-time employment without the knowledge or the authority of the first employer. The employee was found guilty and was dismissed.
The employee referred an unfair dismissal to the CCMA who found that the dismissal was both procedurally and substantively fair. The employee then filed a review of this award with the Labour Court. The Labour Court confirmed the dismissal.
The Labour Court held that an employee is expected to act with good faith to their employer and to serve an employer honestly and with integrity in the best interests of the employer. An employee has a fiduciary duty not to engage in conduct that conflicts with their employer’s interests. Employees have a duty to disclose any other employment interests. The employee did not disclose this interest and therefore breached her duty of good faith to the employer.
This Judgment highlights key principles, as follows:
1. Employees have a contractual duty to disclose secondary employment;
2. It is deemed impossible for an employee to fulfil both full time responsibilities effectively;
3. Employees have an inherent duty to act in the best interest of their employer and avoid conflicts of interest;
4. The primary commitment must be with the principal employer and secondary employment should not compromise this commitment;
5. It is important to comply with both the legal framework and workplace policies of the primary employer.
Employees have a duty to uphold the integrity and responsibilities of their primary employment in good faith.
Authored by Ms Ntokozo Ndlovu, a Candidate Attorney in the employment of RW Attorneys, with Ms Faathima Asmall providing oversight.