Adopting a comprehensive disciplinary code and procedure is important for every employer to ensure that charges and sanctions fit the transgression. The consequences of a flawed disciplinary code can result in an adverse award in an arbitration hearing.
A practice frequently used by employers is to use all-encompassing charges, for example, “Actions detrimental to the employment relationship”. The breach of the trust relationship is the test to be applied when determining whether dismissal is an appropriate sanction. If there is no evidence of such a breach, then the employer cannot dismiss and should apply corrective action or formulate a better charge where the evidence supports the sanction.
The charge of “actions detrimental” is frequently used when the employer cannot prove, inter alia, gross dishonesty, and relies on conduct of the employee which has fallen short of the company policies and procedures to state broken trust relationship in order to justify a dismissal. The employer bears the onus to prove the broken trust relationship in order to justify the sanction of dismissal.
In Edcon Ltd v Pillemer NO & others 2010 1 BLLR 1 SCA, the employee was charged with breaking the trust relationship with the employer. The employee was dismissed for breaching company values and was said to have broken the trust relationship. The SCA considered the reasonableness of the Commissioners Ruling that the dismissal was unfair and taking the evidence before him into consideration, found that the witnesses of the employer did not address the issue of trust or were not in the capacity to review whether the trust relationship was broken.
The SCA set out what an employer would need to have proven to justify dismissal:
- The employer cannot just rely on broken policy but must prove that the consequences of the employee breaching the policy has a detrimental effect on the business operations or employment trust relationship.
- The broken trust relationship will need to be established by a person in a superior capacity that has day to day dealings with the employee in order to substantiate the claim.
- The employer will have to show the duties and position of the employee requires a level of trust, and that this trust was broken by the misconduct;
- The impact on the business and the prevailing circumstances will determine if it was gross dishonesty in order to justify dismissal.
- The employee’s disciplinary record can be considered depending on the nature of the dishonesty, long service and clean records are not always mitigating factors.
When relying on “actions detrimental” to the employer or trust relationship, it is important for the employer to be aware of all the elements of the charge that need to be substantiated in order to justify the sanction of dismissal. The use of this charge as an all-encompassing charge is potentially risky as merely relying on the formulation of the charge to encompass the extent of the misconduct is not enough to justify the dismissal in the CCMA.
In order to justify dismissal, the employer will need to prove conduct that is in breach of company policy and procedures and that the conduct had a substantial or profound effect on the business operations and/or trust relationship.