The trust relationship between employers and employee’s lies at the heart of any employment relationship. In deciding whether a sanction of a dismissal is appropriate, the question of the existence of the trust relationship must be canvassed at arbitration. It is trite law that if an employer can prove that the trust relationship has been irreparably broken, a sanction of dismissal would be substantively fair.
The question is whether it’s sufficient that an inference can be drawn due to the nature of the misconduct or whether an employer must lead evidence of the breakdown of the trust relationship to prove that the dismissal was fair.
In Edcon v Pillemer N.O [2010] 1 BLLR 1 (SCA) the Labour Appeal Court held that evidence needs to be led by an employer to demonstrate the breakdown of the trust relationship by a witness that had dealings with the employee. The court found that “in the absence of evidence showing the damage Edcon asserts in its trust relationship with Reddy, the decision to dismiss her was correctly found to be unfair.” Therefore even though it was proved that the employee was found guilty of “failure to act honestly and with integrity” the dismissal was unfair because the employer failed to produce evidence of the damage they stated to be broken.
However, in Woolworths (Pty) Ltd v Mabija & Others (2016) 37 ILJ 1380 (LAC), the court followed a more lenient approach. The Labour Appeal Court found that in some cases the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed, and that it is not necessary for the employer to lead evidence to the breakdown of the trust relationship. However, the court stipulated that “it is always better if such evidence is led by people who are in a position to testify to such breakdown.”
It seemed that the Woolworths case was the exception to the rule as the majority of caselaw suggests the employer will have to support the decision to dismiss by leading evidence.
However, in the most recent case of Autozone v DRC of Motor Industry and Others (2019) 40 ILJ 101 LAC) the Labour Appeal Court held that “where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible.”
The CCMA’s finding that the employee’s dismissal for dishonesty was substantively fair, was overturned by the Labour Court. The Labour Court relied on the authority of the Edcon case stating that “the test is whether the employment relationship has become intolerable, which is a question of fact to be established by appropriate evidence” The Labour Appeal Court set aside the order of the Labour Court and found that the employer could not reasonably be expected to retain the employee in its employ. It found that: “an employer relying on irreparable damage to the employment relationship to justify dismissal would be prudent to lead evidence in this regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and or the circumstances of the dismissal.”
It, therefore, appears that the Labour Appeal Court’s ruling indicates that if it is apparent from the nature of the misconduct that the trust relationship has been irreparably broken down it is not necessary to lead evidence to prove the breakdown. We would, however, advise our members to tread on the side of caution and if possible, to have someone testify that is able to lead evidence on the breakdown of the trust relationship between the employee and his employer.