It has become quite common in arbitration proceedings that the Applicant would raise the point that the trust relationship between the employer and employee had not been irretrievably broken insofar as the employer did not suspend the employee prior to the dismissal process.

This can result in Commissioners making rulings without fully appreciating the nature of the misconduct and the purpose of suspending an employee.

Suspensions can either be punitive or preventative in operation; the former is used as a form of punishment for misconduct in which the employee is found guilty, and the latter refers to a situation where the employer can justify the exclusion of the employee from the workplace due to the nature of the misconduct and which would only be used in situations where the employee has committed serious or gross misconduct. In this instance, the exclusion is temporary until the hearing is finalised.

The next aspect is the trust relationship, which refers to the working relationship between the employer and employee and is given effect through the common law principle of fiduciary duty, which implies that an employee is to act in good faith and the interests of the employer. Where the employee’s conduct may depart from these standards, it is said that the employee’s conduct would negatively affect the trust relationship.

In 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. The Courts and CCMA have enforced this position where the nature of the misconduct may be so overtly gross that it is implied that the trust relationship is irretrievably broken. In such instances, it would not require the employer to prove the burden of broken trust.

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 to decide whether what the Employer did was fair. In arriving at a decision, a Commissioner is not required to defer to the Employer’s decision. 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 the trust relationship is only a factor to consider if it was alleged or raised by the employer in the employee’s dismissal.

In a dispute where an employee has previously been disciplined for 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 (LAC) held that a Commissioner failed to appreciate the effect of a previous disciplinary record, so the Court held that a final warning is implied. The Courts and CCMA should not detract from its purpose and effect. In such instances, the employer should not rely on broken trust, but rather the cumulative impact of misconduct and the employee’s failure to be rehabilitated necessitated the dismissal.

In dealing with whether suspending an employee would point to the absence of broken trust and, therefore, the sanction of dismissal be considered unreasonable – the issue is not a simple one but rather one that requires an appreciation of the circumstances of the misconduct. In the instance of gross misconduct, which would include dishonesty in the form of theft or fraud, or other serious misconduct such as sexual harassment or assault, a suspension should be a necessary measure to protect the interests of the employer and other employees. However, the suspension would not be the basis for a sanction of dismissal. Still, rather than the nature of the misconduct, it would not be necessary to prove the trust relationship is broken as the misconduct has the effect of doing that.

What about instances of misconduct short of gross or progressive misconduct? In such cases, the use of suspension may not be appropriate and may amount to an unfair labour practice. In these matters, the issue in dispute is the cumulative nature of the delinquent misconduct and not based on the employer’s actions prior to dismissal. If it is to be accepted by the CCMA that an employee should be suspended prior to dismissal to establish broken trust, this would diminish the position adopted by the LAC in XSTRATA SA (Pty) Ltd v CCMA and others (JA 50/2014) [2016] ZALAC 93 and lead to situations where employers would be unable to dismiss employees unless they suspend them prior to dismissal. This would amount to an overreach and go against the intentions of the LRA and the Courts in determining whether a dismissal is fair.

Commissioners should not consider broken trust in isolation but rather as a factor to consider with other merits and circumstances. Failing to appreciate the whole nature of the dismissal may lead to undesirable effects, which was not the intention of the Legislature when formulating the LRA.

By Wesley Lazarus

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)