The trust relationship in the context of an employment relationship between an employer and employee is derived through the Common Law of Contract and the fiduciary duty between the parties. Where the conduct of the employee may depart from these standards, it is said that the conduct of the employee would negatively affect the trust relationship. The Labour Relations Act (“LRA”) Item 7 of the Code of Good Practice provides that a dismissal is appropriate as a sanction where the nature of the dismissal is gross in nature, or where the nature of the misconduct has the propensity to destroy the trust relationship.
In terms of the CCMA Guidelines on Misconduct Arbitrations, in ascertaining the appropriateness of the sanction of dismissal, the test is whether the employer could fairly have imposed the sanction of dismissal in the circumstances because the misconduct rendered the continued employment relationship intolerable or because of the cumulative effect of the acts of misconduct. This is a question of fact, and not a question of law, and the decision maker is required to scrutinise the evidence and make a value judgment, taking into account all relevant circumstances. The test is ultimately whether the trust relationship has been breached to the extent that the employment relationship has become intolerable. Broken trust is a complicated burden of proof. It would only become necessary for employers to prove in instances where the nature of the misconduct resulting in dismissal is not gross in nature and where a sanction short of dismissal would be appropriate in the circumstances.
In Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 12 BLLR 1097 (CC; (2007) 28 ILJ 2405 (CC); 2008 (2) BCLR 158 (CC) in terms of the LRA, a commissioner must determine whether a dismissal is fair or not. A Commissioner is not given the power to consider afresh what they would do, but simply to decide whether what the Employer did was fair. In arriving at a decision, a commissioner is not required to defer to the decision of the Employer. What is required is that they must consider all the relevant factors and circumstances. The trust relationship is only one factor to be considered in the totality of the facts of a dispute. It is further accepted that a trust relationship is only a factor to consider if it was alleged or raised by the employer in the dismissal of the employee.
In a dispute were an employee has previously been disciplined for a similar misconduct, it may again not be necessary to prove broken trust as the Courts have set out in XSTRATA SA (Pty) Ltd v CCMA and others (JA 50/2014) [2016] ZALAC 93, in this dispute the Labour Appeal Court held that a Commissioner failed to appreciate the effect of previous disciplinary record (final warning) in so the Court held that a final warning is as implied. The Courts and CCMA should not detract from their purpose and effect. In such instances, the employer should not rely on broken trust but on the cumulative impact of misconduct and the employee’s failure to be rehabilitated, necessitating dismissal.
In Algoa Bus Company (Pty) Ltd v Taswu and Others (PA05/23) [2024] ZALAC 42; [2024] 12 BLLR 1224 (LAC); (2025) 46 ILJ 89 (LAC) (10 September 2024) at Para (14) the Labour Court held that it was necessary for the appellant to lead evidence in respect of the deterioration of the trust relationship as a necessary condition for a finding of unfair dismissal, that is not the law.
Both the Labour Appeal Court and the Labour Court have always consistently held that there is no general obligation on an employer to lead evidence as to the appropriateness of dismissal as a sanction or any breakdown in the trust relationship, nor is there some limited category, as the Labour Court appeared to suggest, in which an employer may be relieved of such an obligation (the Labour Court gave the examples of assault and dishonesty).
Any deterioration in the trust relationship between employer and employee may be a relevant or even significant factor in the determination of the fairness or otherwise of a dismissal, but it is not a determinative factor. Often, the evidence of the nature and extent of the employee’s misconduct will be sufficient for an arbitrator to exercise the required value judgment on the fairness of dismissal as a sanction.
The relationship between broken trust and appropriateness of sanctions is often very subjective and varies depending on the nature of the misconduct itself. If the law is applied properly, misconduct need not be gross in nature to warrant the appropriateness of dismissal. In the example of negligence, once proven, the issue of trust should become moot, and the question should be of the reasonableness of the employer’s decision to dismiss.
Article By Wesley Lazarus
Dispute Resolution Official at Consolidated Employers Organisation (CEOSA)