Some Issues in Relation to the Incidence of Common Law Fiduciary Accountability in Relationships of Employment

Author Kathy Idensohn

ISSN: 2413-9874
Affiliations: Department of Commercial Law, Faculty of Law, University of Cape Town
Source: Industrial Law Journal, Volume 43 Issue 1, 2022, p. 1 – 16


This article considers three inter-connected issues relating to the incidence of common law fiduciary duties in relationships of employment: (1) whether employment generally ought to be recognised as a class of ‘fiduciary relationship’; (2) whether all employees owe fiduciary duties to their employers; and (3) the basis on and circumstances in which employees are bound by such duties. It argues that there is little purpose in approaching the analysis of the existence of fiduciary accountability in employment on a generalised class basis; that such accountability is in all cases fact-based and dependent upon the circumstances of the case; that employment is not an inherently fiduciary relationship; that not all employees owe fiduciary duties to their employers; and that they are only bound by such duties where there is justified reliance on the part of the employer on the undivided loyalty of that employee. It then considers some of the factors emphasised by the courts as relevant for the purposes of determining whether fiduciary duties attach to an employee.