Item 92 of the CCMA’ Guidelines: Misconduct Arbitrations, provides that when an employer is contemplating dismissing an employee, employer should be able to show that the employee’s offence was so serious that it made “a continued relationship intolerable”.
In Humphries & Jewel (Pty) Ltd v FEDCRAW & Others (1991) 12 ILJ 1032 (LAC) the employee was found guilty of disregarding his employer’s authority, which was done in the presence of fellow employees. This, the court held, “amounted to insubordination which the employer was not expected to tolerate”.
The Labour Appeal Court continued to say that ‘the relationship of trust, mutual confidence and respect which is the very essence of a master-servant relationship cannot, under such circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee, it is unreasonable to compel either of the parties to continue with the relationship”.
It is well known that in instances where the employer dismissed the employee based on the fact that the trust relationship has broken down, judicial forums are not likely to interfere with the sanction, as the “intolerability” is a subjective perception of those involved in the relationship and therefore not something that can easily be challenged or disproved by outsiders.
What is equally important is that the employer must lead evidence to show that the trust relationship has indeed broken down. This is normally done by presenting evidence about conduct or incidents which illustrates a lack of respect and trust between employer and employee – most often this is illustrated by rude, condescending or foul language being used in exchanges between the parties involved.
If confronted with challenging situations or any other labour related issues, employers are encouraged to consult reputable labour law advisers in order to navigate this mine field.