The duty of fidelity

There was a time, and not so very long ago, that when a young man asked her father for a young woman’s hand in marriage – and in those days men actually did that – it was taken for granted that she was incapable of deciding such things wisely for herself, and her hand was the only one he could ask for.

Even in MDCs – more developed countries, for those who have not caught up with customs in the “developed” world – if her father agreed, and the young man backed out of the commitment, it was contrary to a law called breach of promise, which was derived from the ancient "breach of the honour of fidelity" concept.

In such cases, the young man could be sued. I don’t actually remember what the penalty was in dollars and cents, but Wikipedia states: "Breach of promise is a common-law tort, abolished in many jurisdictions. It was also called breach of contract to marry, and the remedy awarded was known as heart balm."

From at least the Middle Ages until the early 20th century, a man's promise of engagement to marry a woman was considered, in many jurisdictions, a legally binding contract. If the man were to subsequently change his mind, he would be said to be in "breach" of this promise and subject to litigation for damages.

My, how customs have changed.

One place in which it has not changed, however, is in the employment world, where there are three common-law torts that still exist.

The first, which will be discussed today, is duty of fidelity that an employer has toward employees and that employees have toward the employer. This is a term implied in every contract of employment: that the employee (and please remember that management employees are included in this, as well as all public officers, who are employees of the State) is to serve honestly and faithfully. This will include handling property of the organisation – even stationery – using computers and other equipment
and the internet only for the purposes for which they were allocated, not to play online games or watch pornography; not serving competitors; and maintaining strict confidentiality in relation to information and data which are meant to be kept confidential.

In a recent Industrial Court award, in trade disputes 143 and 144 of 2000, the breach of the duty of fidelity was the issue cited. In that case the issue was a technician working for a competitor of his employer, doing largely the same thing he was employed to do for his employer, but at a cheaper rate. He was dismissed for breaching the fundamental duty of fidelity.

Going beyond, on the legal ladder, in the High Court and the august canon of the common law: High Court claim number CV 209-03930, dealt with the dismissal of an employee who had deleted or misplaced, without authority, a database consisting of human-resource records dealing with employees’ benefits statistics. Justice Frank Seepersad had to determine whether the dismissal was either wrongful or unfair.

One of those charges comes under the purview of the Industrial Court and the IRA and the other under the jurisdiction of the High Court. He ruled: "In the High Court’s mind there exists a clear distinction between the common-law jurisdiction as it relates to wrongful dismissal and the statutory empowerment vested in the Industrial Court as it relates to the issue of unfair dismissal.”

He added he was resolute "that the jurisdiction of the High Court does not extend to a determination of the issue of unfair dismissal and that matters before the High Court have to be determined with the law in relation to wrongful dismissal. The court had also had to address its mind to the duty of fidelity which an employee has to an employer, a duty which requires the employee to restrain from a wilful disruption of the operation of the employer’s functions.”

It is hard to get more clear than that!

He went on to say: "Employees need to understand that they are accountable for the information or obligations that are under their purview. In addition, it is not open to an employee, even if the employee feels aggrieved, to act in a manner which is inconsistent with the obligation and duty of fidelity which arises under the common law as between an employer and an employee.”

There have been many publicised instances in recent months, for whatever reason, in which a dismissed employee of whatever status has chosen not to take a grievance arising out of the termination of their contract of employment through the Industrial Court route in search of compensation or justification for their actions, but through the High Court.

This is every citizen's right. It does not require the intervention of the representative of a trade union of which they are a member, and have been for a specified period of months. In other words you cannot just join a union, pay a modest membership fee and then exploit the services of the union by having it represent you in the High Court and, when the case has been heard, resign.

What you must do is hire a licensed member of the Bar – and they do not come cheaply – to handle the case on your behalf. In the case quoted here, the claimant – the person who was terminated – lost the case, which happens in whichever court journey the claimant chooses to follow.

In future articles, I will deal with the other fundamental duties of both employer and employee which are implied in every contract of employment.