This article was written by Amelia Berman, a Senior Associate and Shenaaz Munga, a Candidate Attorney at Norton Rose Fulbright South Africa

Whilst it is prudent for employers to lead evidence regarding the breakdown of the trust relationship at disciplinary hearings and during arbitration proceedings, particularly evidence from the accused’s line manager, the Woolworths judgment is useful in demonstrating that where some misconduct is so gross in nature, an inference can be drawn that there has been a breakdown of the trust relationship without the need to lead such evidence.

In the 2009 judgment of Edcon v Pillemer, the appeal court, in considering the fairness of Ms Reddy’s dismissal, held that evidence needs to be led by an employer to demonstrate the breakdown of the trust relationship and that such evidence ought to be led by the employee’s line manager.

Ms Reddy was the beneficial user of a company vehicle courtesy of Edcon’s car scheme policy.  The vehicle was involved in a collision whilst being driven by Ms Reddy’s son.  In terms of the car scheme policy Ms Reddy was obliged to report the incident to Edcon, the South African Police Services and the relevant insurance company within 24 hours and not carry out repairs to the vehicle without the approval of the insurance company.  Ms Reddy neither reported the collision nor sought the approval of the insurance company for the repairs.  Ms Reddy instead arranged with her husband to repair the vehicle at his panel beating shop at her own cost.

Edcon later became aware of this.  When Ms Reddy was confronted by her manager she denied that the vehicle had been involved in a collision but later admitted that the incident had occurred.  She however claimed that it occurred while she was driving the vehicle.  During a later statement Ms Reddy changed her version and confessed that her son was driving the vehicle when the collision had occurred.

Ms Reddy was charged and ultimately found guilty and dismissed from her employment.  The basis of the chairperson’s decision was that Ms Reddy behaved without integrity and honesty which were values in high regard by Edcon.

The court of appeal found that the thrust of Edcon’s case against Ms Reddy was that her conduct breached the trust relationship and found that someone in management who had dealings with Ms Reddy in the employment set up ought to have advised the commissioner in what respects Ms Reddy’s conduct breached the trust relationship.  The court concluded that the commissioner’s finding that Edcon had led no evidence showing the alleged breakdown in the trust relationship was beyond reproach.

The court went on to state that “in the absence of evidence showing the damage Edcon asserts in its trust relationship with Reddy, the decision to dismiss her was correctly found to be unfair”.  On this basis the appeal was dismissed.

In the 2016 case of Woolworths (Pty) Ltd & Khayalethu Christopher Mabija Case No PA 3/14 the Labour Appeal Court appears to have revisit the principles set out in the Edcon v Pillemer judgment.

Mr Khayalethu Christopher Mabija was employed by Woolworths from 2007.  He was charged with and found guilty of gross misconduct as he failed to comply with the employer’s cold chain policy and procedure by leaving a dolly with cold chain products unattended.  He was also found guilty of leaving a pallet of long life products on the delivery truck despite indicating that he had received such products.  He was dismissed from Woolworths.

Mr Mabija referred a dispute to the CCMA and after hearing the evidence the commissioner found that the employee had committed both acts of misconduct but found that the sanction of dismissal was too harsh.  The commissioner found that the employee must be reinstated with a final written warning.  Woolworths then instituted a review application challenging the reasonableness of the arbitration award, which was dismissed.  Woolworths appealed against the court’s decision, but the appeal was dismissed by the Labour Appeal Court.

In considering the notion of the breakdown of the trust relationship the Labour Appeal Court made some interesting observations.  The Labour Appeal Court held that:

[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 dishonesty, 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.”

The Labour Appeal Court then went on to cite the Edcon v Pillemer judgment stating that:

It is however always better if such evidence is led by people who are in a position to testify to such breakdown.

Where an employee has committed gross misconduct but a commissioner finds that dismissal is too harsh a sanction simply because of the failure of the employer to lead evidence on the breakdown of a trust relationship, this may constitute a reviewable irregularity on the commissioner’s part.  Such an approach would be overly mechanistic and cannot be reasonable in the circumstances where it is patent that the employee is guilty of the gross misconduct and it can be deduced by a reasonable person that the misconduct would render the employment relationship intolerable.