Employers often find themselves in situations at the CCMA or a Bargaining Council where an applicant or a union alleges that a certain transgression made by an employee, was not stipulated in their contract of employment.
This issue is usually raised when an applicant alleges that a specific duty, does not form part of his/her scope of duties as is stipulated in his/her contract. It can also be raised with regards to the breaking of a rule that was not specifically stipulated in the contract.
According to John Grogan in Workplace Law, 12th Edition, “A tacit term is an ‘unexpressed provision of the contract which derives from the common intention of the parties, as inferred by the court from its express terms and the surrounding circumstances’. Tacit terms are read into the contract because it is assumed that, although the parties did not include them expressly, they would have done so had they thought about them at the time. The test used for the existence of tacit terms, is whether it can confidently be said that if at the time the contract was being negotiated, someone had said to both parties, ‘what will happen in such a case?’ they both would have replied, “Of course so and so will happen; we did not trouble to say that; it is too clear’. Such terms will normally be read into the contract if they are necessary to give the contract ‘business efficacy’ – i.e. to render it effective and workable.”
So with the above in mind, how would an employer handle a case at the CCMA where an applicant contests that he/she divulged confidential information to an employer’s competitor, based on the fact that his/her contract did not expressly prohibit him/her from doing so? Or where an applicant, employed as a general worker at a factory, for example, states that it is not his/her duty to attend staff meetings because his/her contract of employment does not stipulate that attending staff meetings forms part of his/her duties?
Grogan states, “there is a general principle that every employment contract contains an implied term that employees will act in good faith and protect their employer’s interests.”
It can confidently be said that if one were to use the above test for either of these examples, both the employer and employee would have agreed.
“Would you divulge confidential company information to a competitor?” “No.” “Do you understand that as an employee at this company, you may be asked to attend staff meetings from time to time?” “Yes.”
That said, it is important for employers to keep in mind that specific provision must be made for unique or arbitrary rules in the contract of employment. Specific rules or terms will not always be deemed to be implied in a contract of employment.
Dispute Resolution Official – Bloemfontein