To what extent is an employer required to lead evidence that the trust relationship has been broken down in order to justify a finding that the sanction of dismissal is appropriate? What are the true factors to be taken into account when determining whether or not dismissal is the appropriate sanction?
The article contains the original approach to such issue by the supreme court of appeal in Edcon Ltd v Pillemer NO and Others1 and the interpretation of such approach subsequently in the following judgments:
(a) Woolworths (Pty) Ltd v Mabija and Others;[2]
(b) Easi Access Rental (Pty) Ltd v CCMA and Others;[3] and
(c) Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others.[4]
Woolworths (Pty) Ltd v Mabija and Others[5]
With reference to the issue as to whether or not evidence must be led that the trust relationship has broken down in order to justify a finding that a dismissal is appropriate, the labour appeal court adopted the following approach:
1. the fact that an employer did not lead evidence as to such breakdown does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonesty, cannot attract the sanction of dismissal;
2. in some cases, the outstandingly bad conduct of an employee will warrant an inference that the trust relationship has been destroyed irrespective as to whether or not such evidence has been led;
3. it is, however, always better if such evidence is indeed led by people who are in a position to testify about such breakdown;[6] and
4. even if the relationship of trust has been broken, it would only be one of the factors that had to be weighed with various other factors in order to determine whether or not the dismissal was fair.[7]
Easi Access Rental (Pty) Ltd v CCMA and Others[8]
The labour court, with reference to the aforesaid issue, adopted the following approach:
1. an interpretation of the Edcon judgment9 that prescribes that, in every case of dismissal, direct evidence of the breakdown of the trust relationship should be led for the sanction of dismissal to be branded as fair, is incorrect;
2. it is held to be incorrect because it is based on the misconception that the court, in arriving at the decision it did, formulated a legal principle governing the approach to be adopted when dealing with the issue of the breakdown in the trust relationship in dismissal cases and, furthermore, it is incorrect because it ignores the fact that such case turned purely on its own facts;
3. also, the Edcon judgment[10] is not to be interpreted to suggest that evidence regarding the breakdown of the trust relationship had to be led at the disciplinary enquiry;
4. it is, of course, of importance for the employer to lead such evidence because it will assist the commissioner in the assessment of the fairness of the dismissal;
5. in the case where direct evidence of the breakdown of the trust relationship has not been led, the enquiry into the fairness of the dismissal by the commissioner must include a determination as to whether or not the breakdown cannot be inferred from the nature of the offence and/or the circumstances of the dismissal;[11] and
6. in the scenario where no evidence has been led as to the breakdown of the trust relationship, the following factors must, inter alia, still be considered by the Commissioner in determining whether or not the dismissal is the appropriate sanction: the nature of the offence, the seriousness of the misconduct, the nature of the job, the position of the employee, the period within which the employee was supposed to have committed the transgression; the nature of the risk which the employee’s conduct exposed the employer and other employees to.
Member of the Executive Council, Department of Health, Eastern Cape v Public Health and Social Development Sectoral Bargaining Council and Others[12]
The labour court, in the said judgment, adopted the following approach to such issue:
1. the general approach is the one expressed by the supreme court of appeal, in Edcon Ltd v Pillemer NO and Others,[13] to the effect that an employer is required to present such evidence in order to justify a dismissal;
2. since the Edcon judgment,[14] the labour appeal court has found that it is not an invariable rule, in every single instance, that evidence is to be led to establish a breakdown in the trust relationship, in order to justify the dismissal;[15]
3. the labour court in casu therefore interpreted the Edcon judgment to entail that the so-called rule must be read in the light of the facts of that specific case;
4. in circumstances where employees are guilty of, for instance, gross dishonesty or comparable misconduct, particularly in relation to the core job functions executed by them, the ratio of Edcon does not apply; and
5. it is well-established that gross dishonesty warrants dismissal without the leading of further evidence that the relationship has been broken down.[16]
2 (2016) 37 ILJ 1380 (LAC); [2016] 6 BLLR 568 (LAC); (2016) 27 SALLR 56 (LAC)
3 (2016) 37 ILJ 1419 (LC); [2016] 8 BLLR 783 (LC); (2016) 27 SALLR 115 (LC)
4 Supra
5 (2016) 37 ILJ 1380 (LAC); [2016] 6 BLLR 568 (LAC); (2016) 27 SALLR 56 (LAC)
6 See Edcon Ltd v Pillemer NO and Others supra at paragraph [19]
7 See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others supra at paragraph [116]
8 (2016) 37 ILJ 1419 (LC); [2016] 8 BLLR 783 (LC); (2016) 27 SALLR 115 (LC)
9 Supra
10 Supra
11 See, inter alia, Department of Home Affairs and Another v Ndlovu and Others (2014) 35 ILJ 3340 (LAC) at paragraph [16] as well as Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others supra
12 Supra
13 (2009) 30 ILJ 2642 (SCA); [2010] 1 BLLR 1 (SCA)
14 Supra
15 See Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer [2015] 4 BLLR 394 (LAC) at paragraph [19]; Department of Home Affairs and Another v Ndlovu and others [2014] 9 BLLR 851 (LAC) at paragraph [18]
16 See, inter alia, Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602 (LAC) at paragraphs [52] – [56]
