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A reflection on the duty of mutual trust and confidence: Off-duty misconduct in the case of Biggar v City of Johannesburg revisited

The case of Biggar v City of Johannesburg Emergency Management Services (2011) 32 ILJ 1665 (LC) provides a critical analysis of the implied obligation of good faith and fair dealing in the context of off-duty misconduct. This paper examines the extent of the obligation upon the employer not to act without reasonable and proper cause, if the action is such as would be calculated or likely to destroy or severely damage the relationship of trust and confidence that exists between the employer and its employees. The paper further argues that failure by the employer to take the necessary steps to eliminate the off-duty racial abuse directed to the employee by the white co-workers resulted in the breakdown of trust and confidence in the workplace. Lastly, the paper examines the role that mutual trust and confidence play in protecting vulnerable employees by serving as a bulwark against illegitimate conduct on the part of the employer.