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Article 34/2021

Labour Edge

Is it always required to lead evidence about the destruction of the trust relationship in order to avoid a reinstatement order?

  1. Certain cases of misconduct speak for themselves, and it is not always an imperative to lead evidence about the destruction of the trust relationship. As pertinently said in Impala Platinum Ltd v Jansen and Others (2017) 38 ILJ 896 (LAC), at paragraph [13]:

‘Since Edcon, 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’ (see also Schwartz v Sasol Polymers and Others (2017) 38 ILJ 915 (LAC) at paragraph 30; G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero NO and Others (2017) 38 ILJ 881 (LAC) at paragraph 30; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (supra), at paragraph 19; Rustenburg Platinum Mines Ltd v United Association of SA on behalf of Pietersen and Others (2018) 39 ILJ 1330 (LC), at paragraph 59).

  1. In Woolworths (Pty) Ltd v Mabija and Others (2016) 37 ILJ 1380 (LAC), at paragraph [21], the labour appeal court held:

‘The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonesty, cannot be visited with a dismissal without any evidence as to the impact of the misconduct. In some cases, the more outstandingly bad conduct of an employee would warrant an inference that the trust relationship has been destroyed…’ (see also Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration and Others (2017) 38 ILJ 860 (LAC), at paragraphs [34]–[35]).

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?