“Justice is the sum of all moral duty.” – William Goodwin
Unfortunately, employees often find themselves entangled in various acts of misconduct that constitute deceit or dishonesty and/or gross misconduct. Such acts customarily have a negative impact on the Employer-Employee trust and continued working relationship.
In a previous article in respect to dishonesty, MISA referred to the Labour Appeal Court decision of Nedcor Bank Ltd v Frank & Others (2002) 7 BLLR 600 (LAC), wherein the court stated that “[D]ishonesty entails a lack of integrity or straightforwardness and in particular, a willingness to steal, cheat, lie or act fraudulently…and it is normally used to describe an act where there has been some intent to deceive or cheat.”
Can an employee’s act of dishonesty and/or gross misconduct impact on the trust relationship?
Acts that may impact the trust relationship do not exclusively relate to dishonesty, and may relate to other forms of gross misconduct as well, acts such as fraud, assault, sexual harassment, and gross negligence (border on wilfulness), are but some to name a few. It is common that most acts of dishonesty and/or gross misconduct, negatively impact the working relationship; rendering continued employment intolerable, because of the operational difficulties it causes on the part of an employer, to trust that the misconducting employee shall carry out his or her duties with: honesty, integrity and with due diligence, with the best interests of the employer at heart.
Essentially trust forms the core basis of any employment relationship; and thus, the question that arises, is that when such acts occur, do they render a continued employment relationship as, unbearable?
The Labour Court in the matter of Autozone v Dispute Resolution Centre of Motor Industry and others  JOL 41073 (LAC) (hereinafter referred to as AutoZone Matter), ruled in favour of the employee. In this matter the employee was dismissed for dishonesty for misappropriating company funds to the value of R30. The employee referred an unfair dismissal dispute to the CCMA, which found that the employer had discharged its onus of proving, on a balance of probabilities that the dismissal was substantively fair. Upon review to the Labour Court, it was held that there was no evidence showing that the conduct for which the employee was found guilty of, impacted on the trust relationship (own emphasis), and set aside the award – ordering that the employee be reinstated and a written warning to be issued.
The burning question is, should the employer lead any evidence in the breakdown of the trust relationship?’
In the AutoZone matter, the employer appealed to the Labour Appeal Court (LAC), which held that the employer did not have to furnish evidence that the trust relationship has been irreparably destroyed, and set aside the Labour Court’s award, declaring that the employee’s dismissal had been fair!
However, essentially yes, an employer would need to lead evidence on all aspects to prove the substantive and procedural fairness of the dismissal of an employee; the trust relationship being one of those aspects; however, the absence of same, may not necessarily mean that the court would find in favour of the employee.
In the Labour Appeal Court decision of Impala Platinum Ltd v Jansen and others  ILJ 896 (LAC), the court 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.”
Can the breakdown of the trust relationship warrant a dismissal?
The determinant in this regard is that whether the nature of the single act of misconduct led to an immediate breakdown, and/or has an impact on the trust relationship, and if so, an employee may be dismissed. Meaning further, that the employer need not prove a breakdown of trust over a period of time. Therefore, the employer does not have to go back years to prove that the trust relationship has broken down, a single act of dishonesty, may warrant a dismissal.
The ultimate test is whether, in the circumstances, the employee’s act warrants a dismissal. Be mindful of the decisions you make; even acts, that you may deem insignificant (like drinking someone else’s can of soda from the fridge), may very well lead to a serious breakdown of the employer-employee trust relationship.
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(Article by Tumi Ntshekang & edited by Nichole Turner)
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