An employer’s evidence may assist in assessing the effect of misconduct on the trust relationship.  But a breakdown of trust may be inferred from the nature of the misconduct, particularly if serious or gross. So arbiters must holistically assess the validity and fairness of the reason for dismissal.

Comment: The LC’s use of the word ‘sanction’ should be regarded as a reference to the fairness of the reason for dismissal, as opposed to the validity thereof.  In other words the question is whether an employer can reasonably be expected to tolerate an on-going employment relationship, given the nature of the misconduct.  The use of the words ‘charges’, ‘guilt’ and ‘offence’, which all suggest criminal behaviour and favouring punishment rather than protection of the business, is most unfortunate.

Easi Access Rental (Pty) Ltd v CCMA [2016] 8 BLLR 783 (LC) per Molahlehi J.

Excerpts without footnotes

[22]      It would appear that the finding of the Commissioner is based on the interpretation that Edcon is saying that if there is no direct evidence of the breakdown of trust relationship between the employer and employee then the dismissal should be found to be unfair.  This interpretation is based on one aspect of what the Court said in that case.  The decision of the Commissioner that the sanction of dismissal was unfair, which was upheld by the SCA was not based only on the absence of direct evidence concerning the breakdown in the trust but included factors such as the length of service of the employee and her clean disciplinary record.  This interpretation fails to take into account what the SCA said after formulating the nature of the issue before it on appeal.  It is in this respect stated, in that case, that:

“All we know is that Reddy (the employee) was employed as a quality control auditor, no evidence was adduced to identify the nature of her duties, her place in the hierarchy, the importance of the trust in the position that she held or the performance of her work, or the adverse effects, either direct or indirect, of Edcon’s operations because of her retention, for example because of precedent for example to others.”

[23]      In my view, the interpretation that says Edcon require that, in every case of dismissal, direct evidence of the breakdown in the trust relationship should be led for a dismissal sanction of the employer to stand is incorrect.  It is incorrect because it is based on the misconception that the Court in arriving at the decision as it did formulated a legal principle governing the approach to adopt when dealing with the issue of the breakdown in the trust relationship in dismissal cases.  It is also incorrect because it overlooks the fact that that case turned purely on its own facts.

[24]      In the present case, Edcon seems to be interpreted to suggest that evidence on the breakdown in the trust relationship must have been led at the disciplinary hearing.  In other words, evidence of the breakdown of trust if presented for the first time at the arbitration hearing should be ignored.  This is also incorrect as it is apparent from the reading of Edcon that the finding of the Commissioner which the Court upheld was based on the finding that there was no evidence of breakdown in the trust relationship led at the arbitration hearing.

[25]      To summarise the above, Edcon is not the authority for the often misconceived proposition that in order to sustain its decision to dismiss an employee, an employer must always and without failure adduce direct evidence to show a breakdown in the trust relationship.  It is of course important for the employer to lead such evidence because it will assist the Commissioner in the assessment of the fairness of the dismissal.  In a case where direct evidence of the breakdown in the relationship has not been led, the enquiry into the fairness of the dismissal by the Commissioner includes a determination of whether the breakdown cannot be inferred from the nature of the offence.