Skip to main content

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]).

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?