Lead evidence on the breakdown of trust to justify dismissal?

18 Jan 2017

For years, jurisprudence has been divided on whether, in order to justify a sanction of dismissal, an employer must lead evidence to show that the employment relationship has been rendered intolerable.

In the matter of Impala Platinum Limited v Zirk Bernardus Jansen & Others (JA100/14), the Labour Appeal Court (“LAC”) finally and unequivocally dispelled the myth that this is necessary, which has plagued the labour law fraternity since the Supreme Court of Appeal (“SCA”) handed down judgment in Edcon v Pillemer & Others [2010] 1 BLLR 1 (“Edcon”).

The Edcon case

In Edcon, the breakdown of the trust relationship formed part of the charge against the employee, “committing an act, which has affected the trust relationship between the company and the employee in that on 6 June 2003; you failed to report an accident [involving] a company vehicle … which your son was driving on the day of the accident … and this resulted in a breach of trust between yourself and the company”. At the disciplinary hearing, the employer did not lead any evidence in respect of the destruction of the trust relationship. The employee, however, presented letters from two of her managers, who described her as very honest and hardworking and wished to continue their working relationship with her. This led the SCA to conclude that evidence ought to have been led by the employer for the Commission for Conciliation, Mediation and Arbitration (“CCMA”) to have concluded that the trust relationship had broken down.

The Impala case

The employee was employed as a training manager and was in Impala’s employ for 24 years. Ministerial regulations relating to training required to perform underground work were promulgated in 2002. Their aim was to create a safer underground working environment. The training consisted of theoretical and practical assessments for underground employees. A training service provider, Vuselela, was appointed to conduct these assessments. Vuselela did not finalise all the practical assessments, yet Jansen allowed employees of Impala and employees of contractors to work underground without the practical portion of the training having been completed. It transpired that Vuselela was owned by Jansen’s wife and that Jansen exercised undue influence on other contractors to Impala to make use of Vuselela’s training services. Jansen was dismissed for allowing employees to perform underground duties without the necessary qualification, which was in violation of the rules and procedures that regulate the minimum requirements for employees to perform underground duties and non-compliance with company values, policies and procedure in creating a conflict of interest by promoting the use of a business owned by his wife in circumstances that, at worst, showed corruption and, at best, nepotism.

Jansen challenged his dismissal in the CCMA. The Commissioner concluded that his dismissal was substantively fair. The Labour Court, on the strength of Edcon, overturned the award and held that evidence has to be led to show that the employment relationship has been rendered intolerable to justify the sanction of dismissal. The LAC considered the applicability of Edcon to Jansen’s conduct and concluded that Jansen’s dismissal was fair, even though specific evidence was not led on the breakdown of the trust relationship because:

• Jansen’s conduct undermined the safety measures implemented to ensure the safety of employees in the mining environment, which, by its very nature, is a high-risk industry.
• Jansen’s misconduct was gross in that he put employees in danger and also exposed Impala to the risk of sanction for the contravention of statutory regulations.
• Jansen allowed employees of Vuselela, who were previously dismissed from Impala, to train Impala employees, despite a rule against this practice.
• Apart from Jansen’s undue influence on Vuselela’s appointment as a training service provider, he authorised such appointment while Vuselela did not possess the necessary certification to conduct the training.

The LAC concluded that the above is a clear breach of Jansen’s duty towards his employer and held that “it must therefore be implied from the gravity of the misconduct that the trust relationship had broken down and that dismissal is the only appropriate sanction.”

It is important to note that the LAC held that considerations such as long service, an unblemished disciplinary record and remorse, albeit mitigating factors, do not bar an employee from avoiding the sanction of dismissal. The LAC further emphasised that dishonesty makes the restoration of trust unlikely and that the nature of the employee’s misconduct can very well lead to the employment relationship being rendered intolerable. The LAC held that Jansen’s conduct went to the heart of the employment relationship, deserving the severest sanction, ie, dismissal. In such circumstances, it is not necessary for an employer to lead evidence of the employment relationship being rendered intolerable.

What does this mean for employers?

An employer will be able to justify its decision to impose the sanction of dismissal in circumstances where the employer has not led evidence on the breakdown of the trust relationship, where the nature of the employee’s misconduct clearly renders employment intolerable. Should this evidence be available, we recommend that it be led, as it will strengthen the employer’s position.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)