A Revolutionary Picket Lands an Employee in Trouble: A Case of Broken Mutual Trust in the Workplace in South Africa - South African Revenue Services v Commission for Conciliation, Mediation and Arbitration [2023] ZALCJHB 222

Abstract

Every contract of employment contains an implied duty that neither employer nor employee will, without proper reason, act so as to breach the duty to maintain mutual trust and confidence between them. If either party breaches the duty, the other party is entitled to take action against them. A breach by the employee may entitle the employer to terminate the contract of employment. For this reason, this case note on South African Revenue Services v Commission for Conciliation, Mediation and Arbitration ([2023] ZALCJHB 222) (SARS v CCMA) seeks to examine the impact of a breach of mutual trust and confidence by an employee who was booked off sick, but was later found on the picket line within this same period of sick leave. The case note begins with an explanation of the historical development of the implied term concerning mutual trust and confidence. South African common law and the implications of the Constitution of the Republic of South Africa, 1996 (the Constitution) for labour law are dealt with extensively with reference to the implied term of a duty to preserve mutual trust and confidence. The term is examined within the context of employment contracts and the mutual obligations imposed by common law on both parties.