Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
Common law obliges employees to be loyal to their employers, to carry out their work properly, to protect the employer’s reputation and to avoid conduct that could clash with the employer’s interests.
However, there are limits to the employee’s duty of loyalty.
Loyalty limits
- The employee is not obliged to carry out any illegal instructions.
- The employee would not be obliged to forego his own legal rights in order to satisfy the interests of the employer.
Where a managerial employee joins a trade union this could well result in a conflict of interests.
Employers have historically been quite successful in preventing managerial employees from belonging to trade unions. This was because it was widely accepted that a manager could not properly carry out his/her duties if he/she also owed loyalty to a trade union. However, this state of affairs has changed since the advent of South Africa’s new dispensation.
Labour Court
In the case of FAWU vs The Cold Chain (2007, 7 BLLR 638) the employee accepted a management position but refused to relinquish his posts of shop steward and union office bearer. He was then retrenched. The employer claimed that the employee could not properly carry out his managerial duties if he was involved in trade union activity.
The Labour Court decided that:
- The employee had a right in terms of South Africa’s Constitution and the Labour Relations Act (LRA) to be involved in union activity.
- The potential conflict between the roles of unionist and manager could be dealt with via the disciplinary procedure if the employee was unable to carry out his managerial role effectively.
- The dismissal was automatically unfair.
- The employer was to pay the employee nine months’ remuneration in compensation.
In this case the Court found that the employee’s rights outweighed the employer’s concerns of conflict of interest.
From the above it appears that, where the law protects employee rights, the employer’s interest will often come second. However, while employers must hesitate to act against employees merely due to the employees’ affiliations, they still retain the right, in certain circumstances, to discipline employees if their affiliations actually interfere in practice with the execution of their duties.
As it is very difficult for employers to know in each case whether the conflict of interest is punishable or not they are advised to avoid taking any action until they have first consulted with a labour law expert.
