All employees have an implied duty of fidelity to an employer; this is how it is explained.
“Applicant’s legal obligations (as an employee) to the Respondent (as his employer)
[25] Whether express or implied, every employee has a duty of fidelity to their employer.
26
[26] Sometimes also described as a duty of loyalty and good faith, the scope of the duty of
fidelity was outlined by Palmer J in Digital Pulse Pty Ltd v Harris,
27 where his Honour said:
“[20] An employee has a duty to act in the interests of the employer with good faith and
fidelity. That duty is implied in every contract of employment if it is not otherwise
imposed by an express term. In addition, the duty is imposed upon every employee by
the law of fiduciaries, the relationship of employer and employee being recognised as a
paradigmatic fiduciary relationship.
[21] The obligations imposed by the duty are not coterminous with the employee’s
normal working hours: they govern all the activities of the employee, whenever
undertaken, which are within the sphere of the employer’s business operations and
which could materially affect the employer’s business interests. Whether a particular
activity could materially affect the employer’s business interests is a question of fact
and degree.
[22] The duty of loyalty requires that an employee not place himself or herself in a
position in which the employee’s own interest in a transaction within the sphere of the
employer’s business operations conflicts with the employee’s duty to act solely in the
employer’s interest in relation to that transaction. A fortiori, an employee may not take
for himself or herself an opportunity within the sphere of the employer’s business
operations without the employer’s fully informed consent.”.
28
[27] The duty of fidelity is essentially replicated in the Woolworths Group Code of Conduct
(Woolworth’s Code), that applied to the Applicant during his employment with the
Respondent.29 The Applicant has never asserted in these proceedings that he was not bound by
the Woolworth’s Code. Further, clauses 2.1.1 and 2.1.2 of the Big W Stores Agreement 2019
(which relevantly applied to the Applicant at the time of his dismissal), reads:
“2.1 What are BIG W’s standards and policies?
2.1.1 BIG W aspires to be a great place to work and a great place to shop. We are all
responsible for contributing to an environment where everyone at BIG W is treated with
dignity, courtesy and respect. To ensure we do the right thing by our teams, our
customers and our communities, BIG W has standards and policies that we expect our
team members to follow at all times.
2.1.2 All team members at BIG W are required to read, understand and follow the
[Woolworth’s] Code of Conduct and all applicable BIG W policies. However, such
policies are not incorporated into this Agreement or any team member’s contract of
employment. The [Woolworth’s] Code of Conduct and all policies are available on the
BIG W intranet, and may be updated from time to time.”
Best v Woolworths Group Limited [2023] FWC 1283 delivered 10 July per Boyce DP