The Labour Relations Act places the trust relationship between the employer and employee at the heart of the employment relationship. Therefore, it can be assumed that an act of misconduct would impact that trust relationship and render continued employment impossible. While that may seem like the logical basis for dismissal, employers are cautioned against making emotional decisions in deciding whether the employees’ misconduct does, in fact, warrant a sanction of dismissal.
For misconduct to be dismissible, the employer bears the burden of proof in establishing that the employee’s conduct had a negative or detrimental impact on the working relationship, which would render the continued employment intolerable and therefore justify the dismissal. Certain misconduct, on face value, may, on the nature of the misconduct itself, infer that the employment relationship is irretrievably broken. Acts of dishonesty which includes theft, fraud, and misrepresentation (Mothiba v Exxaro Coal (Pty) Ltd t/a Grootgeluk Coal Mine (2021) 42 ILJ 1910 (LAC)), are said to go straight to the heart of the employment relationship and once the employer can prove the misconduct did take place a sanction for dismissal would be warranted. In 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 will probably 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.” (See also G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (2017) 38 ILJ 881 (LAC))
Instances of misconduct short of dishonesty but which are nonetheless gross in nature may still justify a sanction for dismissal. However, the employer would have to prove why the misconduct broke the trust relationship. In instances where an employee has been progressively disciplined, this may further justify dismissal where the employer can show that they have exhausted all possible attempts to rehabilitate the employee, and further rehabilitation would not be effective in changing the employee’s conduct. In Impala Platinum Ltd v Jansen and others  4 BLLR 325 (LAC), the Labour Appeal Court held that “this Court has repeatedly stated 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”.
When it comes to an arbitration, which factors should an employer consider in determining whether the trust relationship has been irretrievably broken down? Some of these factors are explored below:
- Nature of the misconduct,
- The impact of the misconduct on the business and/or trust between employer and employee,
- Past disciplinary action,
- Whether dismissal was the last or only resort or,
- Whether discipline short of dismissal may remedy the misconduct.
When determining the sanction, it is essential to consider the evidence on a case-by-case basis in consideration of all the facts of the misconduct in question. It is essential for an employer to consider all factors prior to making a decision. Furthermore, employers should attempt to remove emotion and treat dismissal as an operational management decision over a retaliatory one, which may result in adverse outcomes at an arbitration.
Article By: Wesley Lazarus
Dispute Resolution Official – George