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Darcy du Toit’s Comment in IR Network published by LexisNexis [subscription required] Not every breakdown in trust is irretrievable
“From this the commissioner concluded that the trust relationship between the parties had broken down irretrievably and that compensation should be ordered instead of reinstatement. Such a breakdown, in other words, can be manifested not only prior to dismissal – in which case dismissal would be justified – but also afterwards. Thus, in the commissioner’s view, it was “not reasonably practicable” for the employer to take back an employee who was intent on waging a “bigger battle” against it.
On the face of it, such a finding is not unreasonable, and it has some support in case law. In Maepe v CCMA & another the dismissal of a CCMA commissioner for alleged s exual harassment was found to be substantively unfair. However, the commissioner had lied in his disciplinary enquiry as well as at arbitration and, for this reason, reinstatement to a position demanding the utmost integrity was held to be “impracticable”. This demonstrates that an employee’s conduct after dismissal can result in a breakdown of trust”.
. . . . .
“In these circumstances, the Labour Court concluded, no reasonable arbitrator could have concluded that it was impracticable to reinstate the employee to his position as a bulldozer driver.
This could be seen as straining the limits of tolerance, in that remarks made even in the heat of the moment can cause lasting damage. At the same time, the central role of work in social life underlines the importance of not allowing employment to be terminated, and not declining to order reinstatement, unless the reasons for doing so are truly compelling. “Impracticable” should be construed narrowly and does not extend to what is merely unpleasant. The fact that Mr Sibeko and his employer might not like each other very much after their acerbic exchanges, thus, should not justify the court in stepping in to separate them. A breakdown in trust there may well have been but, in the bigger scheme of things, it should not be irretrievable.
The order of compensation was therefore replaced with an order of reinstatement, and the employer’s appeal was dismissed”.