One of the cornerstones of the employment relationship is trust. The employer trusts that the employee will perform his or her duties to the best of their abilities in accordance with the employer’s expectations.

One of the most significant reasons why employees are dismissed for misconduct is that the employer is no longer able to trust the employee. The Labour Appeal Court (LAC) has decided when and where the employer has to lead evidence to prove this.

A case dealing with loss of trust in the employment relationship

In Impala Platinum Ltd v Jansen and Others [2017] 4 BLLR 325 (LAC):

• An employee was dismissed for gross negligence because he allowed workers to perform underground duties when they had not been declared competent to do.

• The employee referred his dismissal to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found that the employee’s conduct was premeditated, deliberate and aimed at promoting his wife’s business. His dismissal was accordingly fair.

• The Labour Court (LC) reviewed the award on the grounds that the sanction was inappropriate because no evidence – which showed that the trust relationship had broken down between the employer and employee – had been led. It was argued that the Commissioner’s conduct had created an impression of bias against the employee.

• The LAC found that LC misunderstood the evidence required to show that the trust relationship had broken down. It found it is accepted in law that where an employee is found guilty of gross misconduct it is not necessary to lead evidence about a breakdown in the trust relationship as it cannot be expected of an employer to keep a delinquent employee in its employ.

Contact Global Business Solutions

As we said, a breakdown in trust is often the cause of a misconduct dismissal. If you find yourself in a situation like this, contact Anndine Dippenaar – or any of the other members of our legal team – to assist.

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