KNOWLEDGE OF MISCONDUCT

 The Labour Appeal Court (LAC) in Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280 (LAC) at para 20 held that:

 

'. . . an appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others or who has actual knowledge of information which the employee subjectively knows is relevant to unlawful conduct against the employer’s interests would be to charge that employee with a material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging a culpable non-disclosure.'

The LAC thus made it clear that an employee's duty of good faith arises once he obtains knowledge and not only when the employer perform an inquiry.  The duty further extends to the employee's own misconduct.

The LAC however stressed that a duty of good faith is not something which can arise through the employee's negligence.  An employee can thus not be held liable where he should reasonably have known about misconduct committed, but did not.