Honesty, sings Billy Joel, is such a lonely word. Companies frustrated with delinquent behaviour of employees happily join in the chorus. Employees performing the dismissal blues at the employment Commission for Conciliation, Mediation and Arbitration (CCMA), on the other hands, often stand amazed when the CCMA upholds the termination of their employment, even where they are found to have been dishonest. When you read the law reports you cannot help but feel that honesty, integrity and ethics are mythical creatures unknown in the modern workplace.
This view was, sadly, reinforced by the recently published South African Business Ethics Survey (SABES). Conducted by the Ethics Institute at intervals since 2002, SABES provides a glimpse into the thinking of employees in listed and large organisations in South Africa. Alarmingly, more employees observe misconduct but a diminishing number of workers are willing to report wrongdoing they observe. In 2009 18% of employees interviewed acknowledged that they observed misconduct with 66% of employees reporting the errant behaviour they observed. The percentages dropped to 14% observed and 64% reported in 2013. The 2016 report, though, shows that a high of 25% of workers observe breaches of workplace rules but that only 48% reported the misconduct observed. One in four employees sees colleagues involved in offences ranging from theft, fraud and corruption to sexual harassment, discrimination and strike violence. Less than half of those employees will then do what they are legally obliged to do, namely, reporting it to their employer.
All employees are under a common law duty to act in good faith in relation to their interaction with their employer. Over a century ago our courts confirmed this duty which includes the obligations of employees to serve their employer faithfully and honestly.
More recently (11 May 2016) our labour court again clarified the employee's duty of good faith. In Dunlop Mixing and Technical Services and another v NUMSA and others the court confirmed that employees are under obligation to provide and explanation to their employer where they are aware of misconduct (or can exonerate themselves). Judge Gush overturned an arbitration award that did not consider the impact on continued employment where employees fail to come forward to notify the employer of misconduct - or confirm their inability to do so where they are not aware of any wrongdoing committed.
In Dunlop the employer dismissed workers who participated in industrial action. During the strike the workers committed various acts of misconduct, including attacks on company vehicles. When the employer was unable to identify the actual perpetrators of the strike violence, it eventually dismissed the striking workers for their failure to identify the culprits. Some strikers were dismissed for their known participation in misconduct (actual misconduct) whilst others had their services terminated due to their unwillingness to identify wrongdoers (derivative misconduct). The arbitrator held that the employer failed to prove, on a balance of probabilities, that the employees dismissed for derivative misconduct knew the identities of the offending staff and then refused to disclose such information. The court, in setting aside the award, clarified that the employees' unwillingness to co-operate and provide any explanation - in itself - caused the relationship of trust to break down.
The court noted the employees repeated failure to provide an alternative explanation - they failed to testify at either the internal disciplinary hearing or the arbitration. The court noted:
The right to remain silent is sacrosanct in criminal matters where accused persons are presumed to innocent until found guilty. This is not a criminal investigation and the presumption of innocence does not apply.
Employees should advise employers of misconduct committed by colleagues. Keeping mum may endear you to the employee secretly singing for another employer on company time. However, it could get you chucked off the work stage with little prospect of getting any sympathy at the CCMA. Honesty, it appears, should be the only world