By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
An employee should only be dismissed for an infringement if he/she has been found guilty of gross misconduct such as, for example, gross dishonesty. The key question is whether the employee’s conduct destroyed the trust relationship.
However, the concept of trust is a tricky one to define. I would like to suggest that, in a labour law context, the employee’s duty of trustworthiness means that the employer has the right to expect the employee to behave honestly at all times without having to be monitored. The Courts have frequently supported this view and have therefore upheld employer’s decisions to dismiss. In the case of Shoprite Checkers (Pty) Ltd vs the CCMA (CLL Vol. 18 August 2008 case number JA 08/2004) the employee was dismissed for consuming the employer’s food without paying. Both the CCMA and Labour Court found the dismissal to be unfair and the employer therefore went to the Labour Appeal Court (LAC) which found that:
- The employee had a clean disciplinary record and had worked for the employer for nine years.
- However, the employee had acted in flagrant violation of the employer’s rules.
- The trust relationship had broken down.
- The dismissal had been fair.
However, in the case of Gibela Rail Transport Consortium vs NUMSA (Lex Info 28 July 2025. Labour Court case number JR1558/2022) the employee, without authorisation, took a company vehicle home, where he was hijacked. The disciplinary code classified this as dishonest. He was fired for this and for fabricating the time of the hijack.
At arbitration the commissioner found his dismissal to have been unfair and ordered reinstatement. The employer applied to the Labour Court for a review. The Court found that:
- The allegation that the employee had dishonestly related the time of the hijacking had not been proven;
- Despite the dishonest element of the employee’s conduct (taking the vehicle home without permission) the unique circumstances of the case rendered the arbitrator’s finding reasonable. The employee had a clean disciplinary record and his superior had testified that he was a good worker;
- It had been reasonable for the arbitrator to rule as unpersuasive the employer’s allegation that the employee’s conduct rendered intolerable the continuation of employment relationship;
- The arbitrator’s award of reinstatement did not fall to be reviewed.
The above finding makes it dangerous for employers to continue to rely on what used to be tried and trusted legal principles when dismissing employees. Instead, employers need now, more than ever before to understand how to weigh mitigating circumstances against the severity of the offence and against aggravating circumstances in arguing that the employee’s conduct rendered a continued employment relationship intolerable.
This is not an easy task because far too many managers have not been trained to understand what the courts see as ‘an intolerable employment relationship’ or as a ‘destruction of trust.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
