Online Reporter
Trust Maanda
Legal Position
AT common law, and under most company codes of conduct, every employee owes their employer a duty of confidentiality.
This means you cannot share your employer’s private business information without authority.
Breach that duty and you can be dismissed — even if you thought you were acting in “good faith.”
The Supreme Court case of Chidembo v Bindura Nickel Corp Ltd 2015 (2) ZLR explains exactly how serious this duty is.
Mr Chidembo was employed by Bindura Nickel Corporation Limited. At the same time, he served as the workers’ committee chairman.
During conciliation proceedings at the Ministry of Labour, a request was made for a list of employees affected by alleged salary anomalies.
Mr Chidembo submitted a list. It contained employees’ names and their salaries. He did this without the company’s authorisation.
The Code of Conduct of Bindura Nickel expressly 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.
As a result, Mr Chidembo was charged with unauthorised disclosure of company secrets, and dismissed.
Mr Chidembo appealed to the Labour Court, then to the Supreme Court. His arguments were, among others: No breach. He disclosed the information during a lawful conciliation hearing and in his capacity as workers’ committee chairman, not as an employee.
He also said he did it in good faith: He did it to prove the workers’ case and protect workers’ rights.
“It was not done in the normal course of his employment contract, so it should be lawful. He did not deny that he disclosed the information, or that he did so without authority.
The court dismissed his argument and upheld his dismissal. The court said Mr Chidembo remained an employee of the company.
Even though he was also workers’ committee chairman, he still owed the employer a duty of trust and loyalty.
His conduct was still governed by the code of conduct.
“Good faith” and “worker representative” status are not a defence.
The court rejected the argument that because he was acting as workers’ committee chairman, the rules did not apply.
His status as a workers’ committee member did not turn what was unlawful, into a lawful act.
Members of the workers’ committee are not a law unto themselves. When defending workers’ rights, they must still follow due process.
How the information was obtained mattered.
The court found that Mr Chidembo had obtained the salary information unlawfully from the workplace in the first place. He knew it was confidential and that he would later disclose it. Using his position as chairman to access information he could not get as an ordinary employee made it worse.
Because the code expressly prohibited disclosure of salary information without authority, the disclosure was a clear act of misconduct.
The fact that it happened during conciliation did not make it lawful.
The court held that where a workers’ committee member commits misconduct that impacts directly on the employer’s private interests and violates the code, they can be found guilty.
The courts will not spare them just because they were “protecting workers’ rights.”
Duty exists at common law and in codes: You automatically owe confidentiality.
A code of conduct just makes it express.
If the code says: “No disclosure without authorisation,” then you must get permission first. Position does not give immunity: Being a workers’ committee member does not exempt you. You are still an employee.
Purpose does not justify breach: Acting “to help workers” or “in good faith” does not legalise an unlawful disclosure.
The court’s advice was clear: “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 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.
The disclosure of confidential information without the requisite authority of the employer remains an unlawful act in terms of the company’s code and at common law.
The fact that an employee commits the misconduct while performing his or her role as the worker’s committee chairperson avails nothing. His or her status as a workers’ committee member does not turn what is unlawful, into a lawful act.
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 +263772432646.
