The Code of Good Practice: Dismissal provides that, where employers are considering dismissing an employee they should be able to justify this drastic sanction by proving that the employee’s misconduct is so serious that it makes continued employment intolerable. One factor that could constitute such intolerability is the employee’s breach of the trust relationship.

For example, the employer is entitled to claim that, where an employee is found guilty of dishonesty, the trust element of the employment relationship has been damaged. However, this does not necessarily mean that the damage to the trust relationship is always so bad that it is irreparable.

It is a well accepted principle that:

• employees are expected, as part of their employment contract, to behave honestly and in the interests of their employers; and that
• trust is an important element to consider in deciding whether the employment relationship of a dishonest employee should continue.

However, the employer’s right to dismiss the dishonest employee for breach of trust depends on the answers to a number of questions including:

• Was the trust really destroyed?
• Was the position that the employee occupied one where trust was a key factor.
• Was there an alternative corrective measure available short of dismissal?
• Has the employer acted consistently. For example, have other employees, committing similar offences, been dismissed due to the destruction of the employment relationship?
• Did the employee try to cover up the dishonest act with further dishonesty or did he/she immediately own up and show genuine remorse?

The intolerability of the continuation of the employment relationship can be caused by misconduct other than dishonesty or breach of trust, for instance, an employed could argue that an employee who sexually harassed a colleague severely damaged working relationships between employees and/or damaged the employer’s reputation. However, the employer must still prove that this damage was serious enough to make continued employment intolerable.

For example, in the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) that I discussed in detail a few weeks ago a senior commissioner at the CCMA was dismissed due to charges of sexual harassment and improper or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest. The accused commissioner then challenged the fairness of the dismissal decision.

The Labour Appeal Court (LAC) sided with the arbitrator who found the dismissal to be unfair because there was no evidence that the employment relationship had either been materially damaged or had become intolerable. On the contrary, the employer had allowed the employee to continue working for five months after his conduct had been reported.

The outcome of this case is a lesson to all employers not to delay the implementation of an employee for too long because this can result in the CCMA or a court deciding that the employment relationship has not been irrevocably destroyed and that the dismissal is therefore unfair.

Persuading an arbitrator that the employment relationship has truly been destroyed is very difficult. This is because:

The modern arbitrator is more and more likely to look for reasons to preserve the employee’s job.

The concept of intolerability has at least as many subjective elements as it has objective elements. What the angry employer feels to be intolerable might not be seen I nthat light by an arbitrator who is more emaotioanlly removed from the situation.

In the light of the above employers should:

• If they believe that the misconduct does merit dismissal, be able to set aside their anger and prove objectively that the employee has made continued employment relationship intolerable by his/her actions.
• Ensure that their charging officers and hearing chairpersons are given thorough and updated training by a reputable labour law expert. This training should include input on what types and quality of evidence might qualify to justify a claim of intolerable employment relationship.
• Get advice from a labour law expert before considering the setting up of a disciplinary hearing in order to ensure that this is justified.
• Consider outsourcing the chairing of the disciplinary hearing to a labour law expert in cases where the case is too hot to handle for internal management.

Contact: lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za