DUTY OF MUTUAL CONFIDENCE AND TRUST BETWEEN EMPLOYERS AND EMPLOYEES/WORKERS
THIS RELATES TO THE INCLUSION IN A CONTRACT OF SERVICE, BOTH FOR A LIMITED DURATION OR FOR AN INDEFINITE TERM, OF A MOBILITY CLAUSE Under this clause an employer would retain the right to transfer or to re-assign an employee/worker to a different geographic location.
As reported in the Fiji Sun (March 3, 2023), the Ministry of Education and the Fiji Teachers Union (FTU) are currently engaged in discussions on the implementation of the ministry’s general policy that teachers are to be transferred to another school at the end of every six years.
The FTU acknowledges that this is not a new policy.
However, it seeks assurances from the ministry that the teachers who have served the six years will be fully consulted and that the best interests and welfare of the teacher and his or her family will be given priority consideration.
The Ministry of Education, for its part, has assured the FTU that there will be full consultations and that this transfer policy will also take into account its impact on the convenience to, and smooth operation of the affected school.
This ongoing dialogue between the FTU and the Ministry of Education on the teacher transfer policy is of wider public interest because it deals with an issue that often arises in employer/ employee or worker relationship under a contract of service.
This relates to the inclusion in a contract of service, both for a limited duration or for an indefinite term, of a mobility clause.
Under this clause an employer would retain the right to transfer or to reassign an employee/worker to a different geographic location.
So, the Ministry of Education policy of transferring a teacher to another school after six years of continuous service in a school is the same as the mobility clause in a contract of service.
This transfer policy or mobility clause is the right under employment law of the Ministry of Education as the employer of teachers.
Common law jurisdictions
However, what will be very helpful both to the Ministry of Education,
and the Fiji Teachers Union and the Fijian Teachers Association combined, is that in common law jurisdictions, the employment tribunals and courts have developed a principle to guide employers and employees/ workers when a dispute arises in the implementation of a mobility clause. According to this common law principle, every contract of service or employment carries with it an implied term that an employer and an employee/worker or union must always deal with each other based on mutual confidence and trust.
The duty of mutual trust and confidence essentially means that an employer and the employees/workers and their union must always deal with each other in good faith and with a mutual commitment to resolving an issue amicably to the satisfaction of both parties.
The combined or joint objective is to resolve the issue whilst maintaining the relationship of mutual confidence and trust.
This implied term in a contract of service was best illustrated in the English case of United Bank Ltd v Akhter (1989) IRLR 503
A bank based at Leeds had a contract of service with a junior officer which included a mobility clause giving the bank the right to re-assign the officer to a new geographical location.
In the course of this officer’s employment, he was called in by the employer and told that he was required to re-locate to a branch of the bank in Birmingham.
And he was to move to Birmingham within six days.
The officer told the bank that he would comply with the re-location directive.
But he requested the bank for more time and financial help. The bank refused.
Thereupon he left his employment with the bank and submitted an employment grievance claim for constructive dismissal.
The Industrial Relations Tribunal ruled in favour of the bank officer. The Tribunal held that the bank had the right under the contract’s mobility clause to reassign the officer to a new location, and by virtue of this, the bank had not acted unreasonably. However, by refusing to provide the assistance needed by the bank officer in order to comply with the bank’s directive to re-locate, the bank had breached its obligation under the implied term of the contract to deal with the bank officer on the basis of mutual confidence and trust.
So, the guidance here for the Ministry of Education and the two teachers’ unions, when implementing the Ministry’s policy of transferring teachers after every six years of service in a school, is to deal with each through this implied term of a mutual duty to resolve any disagreement based on mutual confidence and trust. Employment tribunals and the courts have made it clear in their rulings on employment grievances and employment disputes that employment relationships in the workplace are no longer based of a master-servant relationships.