A recent South African labour case dealt with a breakdown in the trust relationship between an employee and employer over R30.
Legal firm Werksmans explained that the case centred around a driver at a company who was instructed by a regional manager to employ three casual workers to clean up waste and rubble.
The regional manager informed the casual workers that they would each be paid R50 for the work. Once the task was completed, the manager instructed the employee to obtain R150 from the cashier.
However, the employee requested R180 from the cashier and kept R30 for himself.
When confronted about the missing R30, the employee could not provide an explanation but later explained that he had acted out of his own initiative to pay the workers more and had withheld the balance until the work was complete.
The employee was subsequently dismissed for dishonesty and the case was heard in both the CCMA and the Labour Court before being heard in the Labour Appeal Court.
The CCMA ruled in favour of the employer on the grounds that the dismissal was for a fair reason and was accordingly substantively fair.
However, on appeal, the Labour Court ruled in favour of the employee on the grounds that there was no evidence that showed how the employee’s conduct impacted the trust relationship.
Werksmans said that the Labour Appeal Court (LAC) was effectively tasked with answering the legal question – did the employee’s conduct (theft) breach the trust relationship and make continued employment intolerable?
While the LAC acknowledged that the evidence was thin, it ruled that the trust relationship has broken down due to the nature of the offence (stealing).
“Where an employer relies on irreparable harm to the employment relationship to justify a dismissal, it would be prudent to lead evidence to support that claim, unless the conclusion that the trust relationship has broken down is apparent from the nature of the offence or the circumstances of the dismissal,” Werksmans said.
“In cases where the offence reveals an element of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of his misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the employment relationship intolerable or unfeasible.”
The court also held that employees who engage in dishonest or deceitful conduct pose an operational risk to the employer’s business, Werksmans said.
“This operational risk alone would suffice to justify dismissal. In this case, the appellant was entitled to have a driver who would act in good faith and advance and protect the appellant’s interests.
“The employee’s conduct showed that he was not such a driver. The appellant did not have to present evidence that the trust relationship had been irreparably damaged as the nature of the offence and the manner of its commission were indicative of such a conclusion,” it said.
This means that the employee’s dismissal was declared to have been substantively fair.
Importance of the case
The Labour Appeal Court decision illustrates that an employer need not always present evidence of a breakdown of the trust relationship in order to justify dismissal for dishonesty, said Werksmans.
“If the nature of the offence is such that it would lead to a breakdown in trust, no further evidence would be required.
“Nevertheless, employers should err on the side of caution and present some evidence of this breakdown.”