14 October 2009

Breakdown of trust between employer and employee is a matter of evidence

The Supreme Court of Appeal (the SCA) yesterday confirmed that an employer needs to tender evidence to show that the employment relationship with its employee broke down where it seeks to dismiss the employee. It cannot merely allege this and then cry foul if the Commission for Conciliation, Mediation and Arbitration (the CCMA) orders the reinstatement of a dismissed employee on the basis that there is no evidence of the breakdown of the relationship.

In Edcon v Pillemer (191/2008) [2009] ZASCA 135 (unreported judgment delivered on 5 October 2009), the SCA had to consider whether an employee's dismissal was fair, where she was dishonest in reporting facts relating to damage caused to her company vehicle. The employee's son was the driver of the vehicle at the time of the accident. The employee failed to advise the authorities, her employer or the insurance company of the accident, as she was required to do in terms of the employer's policy. She also had the car repaired privately in further contravention of the policy. Some six months later, when complaining to the motor dealership following a routine service of her vehicle, the dealership advised her that they needed to replace some parts not properly repaired during the private panelbeating job. She then requested her employer to authorise the payment for the repair to be undertaken by the dealership, without disclosing the preceding accident as the cause thereof.

When the employer received word of the accident, it charged the employee with misconduct. The employee pleaded guilty to the allegation and pleaded ignorance of the policy. The employer dismissed her from its employ and upheld the sanction during an internal appeal. At the CCMA, the Commissioner was confronted with one witness testifying on behalf of the employer, who indicated that the relationship had broken down. On the other hand, there was documentary evidence in the form of correspondence between the employee and other managers, which painted a contrary picture. The employer did not call these managers to testify at the CCMA arbitration.

The Commissioner thus concluded that the employer did not establish that the relationship between the parties had broken down irretrievably and, considering inter alia the employee's clean record and length of service, ordered the employer to reinstate her, without any arrear salary.

The employer brought an application to the Labour Court seeking to review the award. The Labour Court and the Labour Appeal Courts declined to come to the employer's assistance, hence its appeal to the SCA.

The SCA dismissed the employer's appeal indicating that the arbitrator's finding that the employer "...had led no evidence showing the alleged breakdown in the trust relationship is beyond reproach. In the absence of evidence showing the damage [the employer] asserts in its trust relationship with [the employee], the decision to dismiss her was correctly found to be unfair."

Employers ought to take note of the judgement and ensure that it places sufficient evidence before the CCMA to show that the employment relationship with the employee has irretrievably broken down if it dismisses an employee. Too often, employers leave that aspect to argument and wish to rely on what it perceives to logically follow once an employee has been found guilty of serious misconduct. The SCA confirmed that proper evidence must be tendered on this aspect if the employer wishes to have a dismissal upheld at the CCMA.

Johan Botes
Director, Employment

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