Duty of Good Faith

There were numerous articles shared by MISA relating to the employer-employee relationship. One of the core aspects of this relationship, is a two-way stream of duty of good faith. A simple search of the principle of duty of good faith, will confirm that the duty of good faith is common law and as a result an implied term in every employment contract/relationship.

Let’s unpack the common law principle of “duty of good faith”.

Duty – The Merriam-Webster online dictionary defines ‘duty’ as “obligatory tasks, conduct, service, or functions that arise from one’s position”. In essence one is obligated, either in law or in conscience, to do something! There is no choice!

Good Faith – In biblical term “Now faith is the substance of things hoped for, the evidence of things not seen”. In a certain sense this might form part of the meaning of the principle of good faith, because when you enter into an employment relationship there is no guarantees, there is recourse, but ultimately you are hoping on ‘things not yet seen’. However in the legal context the  Merriam-Webster online dictionary defines good faith as “honesty or lawfulness of purpose”.

Duty of Good Faith – The only inference you can draw in the employment relationship is that the common law duty of good faith places an obligation on you to act honestly (free of deceit; truthful and sincere) and lawfully (not in contravention) with the purpose to uphold the contract of employment/relationship.

Constitutional Court

The question that comes to mind is – ‘To whom does this duty apply, to you as employee, MISA member, employer, or to both the employer and the employee?’

In 2019 the Constitutional Court in NUMSA obo Nganezi & Others v Dunlop Mixing and Technical Services (Pty) Ltd & Others [2019] 9 BLLR 865 (CC) deliberated on the nature and scope of the duty of good faith that is implied in the contract of employment.

Interesting enough the court held that the principles of Ubuntu must be infused into the employment contract. The rationale is that the employment relationship is imbalanced and hierarchical. You as employee are a subordinate to someone in power. The court held that the right of fair labour practices do not only apply to a worker only, but equally to an employer and said that the duty of good faith is a ‘reciprocal duty’. That is, a duty bearing on or binding both parties equally.

Therefore, there is no question that you are bound by a duty of good faith.

Conclusion

In the very same manner that your employer owes you a duty of good faith dealings, you as employee owe the employer the duty to act honestly, without deceit and to uphold (not breach) your contract of employment/relationship.

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Kindly utilise the following e-mail addresses and links for assistance during this time:

Employer UIF/TERS Submissions                    UIFClaim@ms.org.za

Legal/Labour-related enquiries                      Legal@ms.org.za

*  Legal Reception                                            0114763920

MISA Benefit claim-related enquiries           Claims@misa.org.za  

Any other enquiries                                         Info@ms.org.za

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