Are employers, at arbitration, obliged to lead evidence that the trust relationship had broken down to justify the sanction of dismissal?  Our courts have dealt with this issue on several occasions and more recently in Impala Platinum Ltd v Jansen & Others (2017) 38 ILJ 896 (LAC).

In summary, the employee was employed as a training manager for the mine who was responsible for ensuring a safe underground working environment.  He was further responsible to ensure that all the employees who worked underground had completed their training and were certified accordingly.  The employee, however, allowed his subordinates to permit workers to work underground without the required qualifications and training.  Another issue that arose was that the training company he enlisted to provide training was run by his wife and stepdaughter.

The applicant was charged with misconduct relating to gross negligence in that he allowed incompetent workers to perform duties underground and creating a conflict of interest in promoting his wife and stepdaughters’ company to train the workers.  The applicant was subsequently dismissed.  The employee referred the dispute to the CCMA.

The CCMA found the dismissal to be procedurally and substantively fair as the requirements for a fair disciplinary hearing had been met and his actions were grossly negligent and intended to promote his wife’s business interests over that of his employer.

The employee then took the award on review to the Labour Court (hereinafter referred to as “the LC”).  The LC agreed with the employee and set aside the CCMA award. One of the grounds on which the LC relied was that no evidence had been led by the employer that the trust relationship had broken down. The LC held that an employer is obliged to lead evidence and prove at arbitration that the trust relationship had broken down irretrievably.

On appeal by the employer, the Labour Appeal Court (hereinafter referred to as “the LAC”), did not agree with the decision of the LC and held “…that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship as it cannot be expected of an employer to retain a delinquent employee in its employ.”  The LAC held that one must consider the severity of the misconduct as this “may well determine the fairness of the sanction.” The LAC further confirmed that the employee’s misconduct “went to the root of the employment relationship” in that he not only failed to comply with the regulations of the mine but, in addition, breached the duty to act in good faith by promoting his wife’s business to the mine’s service providers, which jeopardised the employers’ business relationships.  The LAC held that “[i]n the circumstances, there was no need to lead any evidence of a breakdown in the relationship, as it was obviously the case.”  The LAC reiterated that the above may not apply where the employer specifically alleges in the charges that the misconduct broke down the employment relationship.  In that instance, the employer must lead evidence on the irretrievable breakdown of the employment relationship at arbitration as it will be necessary to prove the charges.

It must be noted that where the misconduct is of a less serious nature, the employer should lead evidence to prove that the trust relationship had irretrievably broken down.  However, a commissioner, in weighing up the mitigating factors and the misconduct may still find that the sanction of dismissal is too severe.

In conclusion, as illustrated in the Impala case above, where an employee’s misconduct is so serious, it may trump any mitigating factors submitted by the employee and an arbitrating commissioner may infer, without direct evidence being led on the breakdown of the trust relationship, that such misconduct irretrievably broke down the employment relationship, warranting the sanction of dismissal.


Article by: Chanel Snyman

CEO Regional Manager – Port Elizabeth