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]).

On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?

To what extent is a commissioner permitted to rely on the employer’s decision in determining whether or not a dismissal is fair?

In general terms, the determination of the fairness of a dismissal requires an arbitrator to form a value judgment, having regard to the interests of both the employer and the employee, and to achieve a balanced and equitable assessment of the fairness of the sanction.  What are the types of factors to be taken into account in determining whether the employer had thus acted fairly in deciding to dismiss an employee?