Derivative Misconduct and the Employee’s Duty to Act Bona Fide

Abstract

In what circumstances may an employer dismiss an employee who deliberately chooses not to disclose information even though she/he was expressly requested to do so? Can a negative inference be drawn against the said employee? These questions are examined within the context of derivative misconduct which emphasises a duty placed upon employees to disclose any misconduct perpetrated by fellow employees. This duty arises out of the implied common law duty of good faith that an employee owes to his/her employer by virtue of the contract of employment. The duty of good faith is a sacrosanct principle of any employment relationship, the breach of which justifies an employee’s dismissal.