Employee’s duty of confidentiality
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T common law and in terms of some codes of conduct, an employee has a duty of confidentiality towards his or her employer.
An employee must not divulge his or her employer’s confidential information, particularly where the code of conduct expressly prohibits it.
The case of Chidembo v Bindura Nickel Corp Ltd 2015 (2) ZLR, is illustrative of the duty and how breach thereof can lead to dismissal.
In that case, Mr Chidembo was employed by Bindura Nickel Corporation Limited and served as a workers’ committee chairman. He disclosed some confidential information of the employer during conciliation proceedings.
He was dismissed from employment. He challenged his dismissal and filed an appeal to the Labour Court.
The Labour Court dismissed his appeal on the maingroundthattheheviolatedthecompany’s Code of Conduct in that he did not follow the laid down procedures on the disclosure of confidential information.
He approached the Supreme Court on the grounds that the disciplinary procedures set down in the company’s Code of Conduct were not followed, thereby rendering the dismissal both substantively and procedurally wrong.
His defence was that disclosure of the company information was not in breach of the employment code of conduct.
Mr Chidembo was charged with unauthorised disclosure of company secrets as outlined in the company Code of Conduct. The relevant part of the code prohibited disclosure of information relating to any confidential product, plan or business transaction of the company, or personal information regarding employees, including their salaries, or any business information, without authorisation for such disclosure.
In the course of conciliation proceeding, a request was made to the appellant who was present as the workers’ committee chairman, for a list, if he had it, of employees affected by alleged salary anomalies.
Mr Chidembo duly submitted the list which showed employees’ salaries, in addition to their names.
Mr Chidembo did not deny disclosing the information in question and did not deny that he did so without any authority. His defence was that the information was disclosed during a lawful conciliation hearing and in his capacity as a worker representative, not as an employee. He said this was done in good faith to prove the worker’s case and was not an act done in the normal course and scope of the contract of employment of the appellant. He contended that the disclosure was lawful.
The court said such divulsion of information was unlawful as it was done in blatant violation of an express provision of the code of conduct. The court further said employees are better advised to negotiate for easier access to information provisions in employment codes of conduct than to blatantly violate the law.
Mr Chidembo had obtained the information unlawfully from the workplace and the disclosure that followed was unlawful. Though he was a worker representative, he was still an employee and not just a chairman of the workers committee. It was not in order for him to use his status as a worker in order to access confidential information that he fully knew he would disclose as a worker’s committee chairman.
He was an employee of the company, to whom at all times he owed the duty of trust and loyalty. His conduct in relation to the company was regulated and governed by the requisite code of conduct.
He remained accountable and bound to his employer irrespective of the position he assumed as the worker’s committee chairman.
An act of misconduct committed by a worker and in his capacity as a workers’ committee member, is unlawful as long as it impacts directly on the employer’s private interests and in addition, constitutes a violation of the employer’s code of conduct.
Where workers’ committee members, purporting to advance or protect workers’ rights, have engaged in unlawful job actions, the courts have not spared them from the finding of guilty.
The worker’s status as workers’ committee members does not give them immunity against misconduct charges.
The disclosure of confidential information without the requisite authority of the employer remains an unlawful act in terms of the company’s code of conduct and at common law. The fact that an employee commits the misconduct while performing his or her role as the worker’s committee chairperson is of no avail. His or her status as a workers’ committee member does not turn what is unlawful, into a lawful act.
Members of the workers’ committee are not a law unto themselves.
In defending the rights of the workers, a member of the workers’ committee should observe due process.
◆ Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646