Depending on the facts of the case, it is no longer necessary to lead evidence to show that the employment relationship has irretrievably broken down. This is the finding of the Labour Appeal Court (“LAC”) in the 2017-judgment in the matter of Impala Platinum Limited v Zirk Bernardus Jansen & Others (JA100/14). The LAC found that:
[10] The court a quo’s reliance on Edcon was totally misconceived. That judgment turned on its own facts and did not establish as an immutable rule that an employer must always lead evidence to establish a breakdown in the trust relationship in order for the sanction of dismissal to be appropriate.
And:
[13] Since Edcon, this Court has repeatedly stated that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship as it cannot be expected of an employer to retain a delinquent employee in its employ.
The LAC concluded that when the misconduct is such that there was a clear breach of the employee’s duty towards his employer, it may be implied from:
“the gravity of the misconduct that the trust relationship had broken down and that dismissal is the only appropriate sanction”.
In essence the judgment found that when the misconduct goes to the heart of the employment relationship, there is no need for the employer to prove that the relationship has irretrievably broken down.
But what does it mean when we refer to the “trust relationship” or when we say that the misconduct went to the “heart of the employment relationship”?
Although a number of terms are used to describe this relationship, it all comes down to a matter of good faith, meaning that the employee must promote the best interests of the employer.
The employee’s duty to act in good faith is an inherent part of the employment contract.
When an employee damages or undermines the employer’s business interests by, for example, bringing its good name into disrepute; competing with it; by his dishonest, fraudulent or corrupt conduct; or by theft, it stands to reason that the employer can no longer trust that employee.
Despite the many cases that have dealt with this issue, there isn’t a list of specific acts of misconduct or circumstances which destroy the trust relationship. However, the 1998- judgment in the matter of Sappi Novoboard(Pty) Ltd v Bolleurs (1998) 19 ILJ (LAC) is helpful where the court per Myburgh JP provided the following instances by making reference to judgments which were handed down as early as 1886:
[7] “It is an implied term of the contract of employment that the employee will act with good faith towards his employer and that he will serve his employer honestly and faithfully: (…) . The relationship between employer and employee has been described as a confidential one (…). The duty which an employee owes his employer is a fiduciary one ‘which involves an obligation not to work against his master’s interests’ (…). If an employee does ‘anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him’ (…). In Gerry Bouwer Motors (Pty) Ltd v Preller (1940) it was said at 133: ‘I do not think it can be contended that where a servant is guilty of conduct inconsistent with good faith and fidelity and which amounts to unfaithfulness and dishonesty towards his employer the latter is not entitled to dismiss him.’ The conduct of an employee in receiving a commission which arises out of the employment relationship without the knowledge of his employer constitutes a lack of good faith (…).
The principle that dismissal is the appropriate sanction for employees whose misconduct results in the breakdown of the trust or the employment relationship is well-known. In this regard, for example, the Supreme Court of Appeal held in the matter of Council for Scientific & Industrial Research v Fijen (2002) 11 SCA that the relationship between the employer and the employee is essentially one of trust and confidence. Should the employee behave in a manner which is inconsistent with these principles, the employer is entitled to cancel or terminate the contract.
It is important to remember that each case turns on its own facts.
It stands to reason that there is even a stricter requirement on employees who are appointed in positions of trust, not to betray that trust.
