Duty to Act in Employer’s Best Interest

As a general principle of common law, it is the duty of every employee to act in the best interest of their employer. Adjunct to this, for HR practitioners, is the SABPP requirement to act in accordance with the values and code of conduct of the Board. This article discusses two examples of newspaper reports which appear to indicate that there could have been breaches of both the common law principle and the code of conduct of the SABPP. It is accepted that newspaper reports may not give all sides of the story, but this article is based on the allegations as reported.

Written By of Cowan-Harper-Madikizela Attorneys

The SABPP values of Responsibility, Integrity, Respect and Competence give clear guidance on the behaviour expected of professionally registered HR practitioners and should be borne in mind and referred to when considering choices which have to be made in the course of our work.

GIVING EVIDENCE AT AN INTERNAL DISCIPLINARY ENQUIRY

In a recent case, the head of HR at a large employer, along with another head of department, declined a request to give evidence at a disciplinary enquiry into the conduct of a senior executive colleague. The proper conduct of an internal disciplinary enquiry requires that all relevant evidence be brought to the enquiry and that this evidence be validated through a process whereby the employee being charged (Employee A) has the opportunity to challenge the evidence.

It follows therefore that various other employees (possibly in addition to other witnesses such as customers, suppliers and so on) may be asked to attend the enquiry and say what they know about the matter.

If any person who is asked to give evidence declines to do so, this means that the Chair of the enquiry may not have all the possible facts at his or her disposal when making a finding, and there is therefore a possibility that a poor decision could be made, even to the extent of clearing an employee of wrongdoing when in fact that employee committed the alleged misconduct. This is obviously not in the best interests of the employer for various reasons, including the perceptions of other employees, precedents set and the possibility of repeated misconduct on the part of that employee, which may lead to financial or other losses for the employer. The issue is all the more important when the witness is a senior employee of the institution and holds fiduciary responsibilities.

The requirement is that an employee who is asked to give evidence (Employee B) gives complete and truthful evidence, whether this is to the advantage or the detriment of Employee A. It is not up to the witness to decide whether his or her evidence is relevant or important as that is a decision of the Chair of the disciplinary enquiry.

An employee who declines to give evidence may therefore render him or herself liable to a charge of acting against the best interest of the employer. The more serious the charges against Employee A, the more serious the potential charge against Employee B in those circumstances. Accordingly, if employee A has committed fraud or has breached important policies and employee B is aware of this but declines to give evidence, employee B will be guilty of serious misconduct.

An HR practitioner who finds him or herself in the position of Employee B has a special responsibility to ensure that the employer’s disciplinary process is complete and fair in order to promote positive employee relations and a positive ethical culture. Therefore, in order to practise the SABPP values of Responsibility and Respect, it would be expected of HR practitioners to make themselves available to speak at a disciplinary enquiry with whatever information they may have. Their personal relationship with the charged employee is irrelevant. It is also irrelevant if the charged employee holds a more senior position. The practitioner must act professionally.

MAKING PUBLIC STATEMENTS WHEN IN A POSITION OF RESPONSIBILITY

In this case, a senior HR practitioner, who in the course of his duties often acted as a spokesperson for his government employer, released a media statement in his capacity as spokesperson for an unrelated body which has a political profile. This statement was controversial and, to many people, appeared to be inflammatory.

This incident resulted in adverse publicity for his employer, which cannot have a political profile. In addition, it did not reflect well on the employer to have a spokesperson who appeared to advocate a radical position which did not reflect the official government position.

The general principle to be considered therefore is whether a person who is an official spokesperson can make a public statement in his or her personal capacity?

Some may argue that one has a general right to freedom of expression but this must be balanced against one’s duties as an employee. So the facts of each case would have to be considered, to establish whether the employer’s interests have been compromised or not.

In terms of professional conduct, the SABPP values to be taken into account would probably be Respect, Responsibility and Integrity. So did this person act with respect to his employer’s interests? Was he acting responsibly in view of his public official role, and was he demonstrating integrity?

At face value, it would appear that his conduct was not in accordance with the SABPP’s code of conduct, and, if he was registered with the SABPP, this could result in a disciplinary sanction from the Board.

CONCLUSION

As champions of the ethical culture of the employer, HR practitioners should make every effort to behave in accordance with the values of the employer, as well as with their professional Code of Conduct. Some HR practitioners feel that it is unreasonable to have such high expectations laid on them, but the majority of HR practitioners attending the SABPP’s Ethics workshops agree that we do have a special responsibility with regard to ethics and professional behaviour.

SABPP members are encouraged to sign up for these Ethics workshops, which are offered on a regular basis.

Complaints by members of the public against SABPP registered HR practitioners may be initiated by sending an email to ethics@sabpp.co.za. Complaints are handled on a confidential basis by senior officials of the SABPP.

Rod Harper

Rod Harper
Director of Employment

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