Woolworths (Pty) Ltd v Mabija (PA3/14) [2016] ZALAC 5 (19 February 2016) per CJ Musi JA [Waglay JP and Savage AJA concurring]

The reason for dismissal was valid but unfair because the employer failed to prove that the trust and confidence relationship had been breached by the employee.  The employee was reinstated without any loss of service and benefits into the same or similar position on the same terms and conditions that existed prior to the dismissal on 17 November 2010.  But he was only granted 3 months remuneration as compensation and a final written warning was issued valid for 12 months from that date. The LAC disallowed the appeal and upheld the award.

Excerpt [footnotes omitted]

[21]      The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonestly, cannot be visited with dismissal without any evidence as to the impact of the misconduct.  In some cases, the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed.  It is however always better if such evidence is led by people who are in a position to testify to such break down.  Even if the relationship of trust is breached, it would be but one of the factors that should be weighed with others in order to determine whether the sanction of dismissal was fair.  The Commissioner in this case considered this aspect.

. . . . . .

[24]      Double negatives ordinarily refer to the situation when two forms of negation are used in the same phrase.  In some languages, like Afrikaans, the use of double negatives is acceptable because the second negation intensifies or emphasised the negativity of the sentence as a whole.  In English, however, double negatives in a single phrase or clause cancel each other out to become a positive.  The use of double negatives in English is unacceptable because of the confusion it causes.  We must consider whether the use of double negatives in this case was deliberate or a mistake.

[25]      Having regard to the entire award, the only sensible conclusion is that the use of double negatives, in this case, was a grammatical or typographical mistake.  The Commissioner rejected the employee’s version in respect of both counts.  He accepted the appellant’s version.  In simple terms, it means that he rejected the employee’s version as false.  He rejected the employee’s version because he found it to be “unreliable and improbable”.  He could therefore not have found, in the same award, that the employee approached the CCMA with clean hands.  The Commissioner further ordered the reinstatement of the employee from the date of his dismissal; he however found that he should not be paid back pay from that date.  This clearly shows that he used his discretion against the employee (by not ordering his reinstatement with full back pay) inter alia because the employee lied during the proceedings.  The Commissioner was alive to the fact that although an employee’s lies, during disciplinary proceedings, may destroy the trust relationship; there are instances where such inference is not warranted in the absence of clear evidence to that effect.