An integral element of an employment relationship is the need for and the right of the employer and employee to trust each other. This is a two-way street and either party could forgo his/her right to continue the employment by destroying the trust relationship.
Thus, where an employer has mistreated an employee so badly that he/she is forced to resign this could contribute to a constructive dismissal finding. That is, an important element of a successful constructive dismissal claim is the employee’s proof that he/she could no longer trust the employer to treat him/her fairly.
This challenge is also faced by employers when trying to justify the dismissal of employees. When taken to CCMA, bargaining council or Labour Courts employers have a very challenging job to do in trying to win their cases. This is because the law requires the employer to be able to prove that:
- The procedures followed in dismissing the employee were fair in all respects
- The rule that the employee allegedly broke existed at the time and that it was a fair rule
- The alleged transgressor knew the rule
- The rule had been consistently applied
- The employee was in fact guilty of the alleged offence
- The offence was serious enough to merit dismissal as opposed to a lesser penalty such as a warning
- The employee’s conduct irretrievably destroyed the trust relationship rendering continued employment intolerable.
It must be remembered that the employer cannot merely allege that the trust has been destroyed. It must convince the arbitrator at the CCMA or bargaining council that this is a fact. As feelings of trust and mistrust are by definition subjective, providing factual evidence and proof of the destruction of trust is very tricky. Due to the fact that the extent of an employer’s ability to tolerate untrustworthy behaviour is not universal, different employers will have different points at which they draw the trust line. The way that many judges and arbitrators deal with this thorny problem is to ask themselves whether, in light of the facts presented to them, a reasonable employer would or would not be able to tolerate continued employment. However, this approach does not resolve the subjectivity dilemma. Instead, it merely shifts part of the focus of the problem from the question: “what is tolerable” to the questions: “what is a reasonable employer” and “what would a reasonable employer be able to tolerate”. The answer to the latter two questions is still subject to the individual opinions, experience, beliefs, background and tolerance levels of the presiding judge or arbitrator.
Added to this danger is the fact that South Africa’s Constitution, the Labour Relations Act (LRA), codes of good practice and case law decisions are permeated by the principle that it is the employee who is entitled to fair labour practice and to protection from unfair dismissal. In effect, section 188 of the LRA dictates that an employer, accused of unfair dismissal, is guilty of the alleged unfairness if the accused employer is unable to prove itself innocent. Thus, even the Constitutional protection that an accused is assumed innocent until proved guilty is not available to the employer. Therefore, where the employer is unable to convince the judge or arbitrator that the dismissal was fair, the dismissal will most likely, by default, be ruled to be unfair.
The uneven weight of onus placed on the employer by labour law means, in practice, that the employer has to arrive at the court/CCMA/bargaining council with solid evidence of everything it is required to prove as summarised in the seven points listed earlier in this article. Even where the employer is able to present convincing proof of the first six criteria it will still lose if it cannot convince the arbiter that the employee’s conduct irretrievably destroyed the trust relationship rendering continued employment intolerable.
In the case of Edcon Ltd vs Pilemer NO (Contemporary Labour Law Vol 21, No.1 August 2011) the Supreme Court of Appeal found that it is insufficient for an employer merely to state that the employee had destroyed the employment relationship. Evidence will have to be led to show why the employer believes this to be the case. This means that the employer must bring evidence relating to the nature of the employee’s job, the nature of the offence, the degree of seriousness of the offence, the employers disciplinary code, the employee’s past record, the nature of the employer’s business and other relevant factors showing why the employer cannot trust the employee.
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