Item 92 of the CCMA’ Guidelines: Misconduct Arbitrations, provides that when an employer is contemplating dismissing an employee, the employer should ask themselves whether “the continued relationship intolerable”.
In the case of Humphries & Jewel (Pty) Ltd v FEDCRAW & Others (1991) 12 ILJ 1032 (LAC) the employee was found guilty of disregarding his employer’s authority, which occurred in the presence of colleagues. This, the court said “amounted to insubordination which the employer was not expected to tolerate”.
The Labour Appeal Court in Humphries further held that ‘the relationship of trust, mutual confidence and respect which is the very essence of a master-servant relationship cannot, under these 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 evident that in instances where the employer dismissed the employee since the trust relationship has broken down, judicial officers will most likely not interfere with the sanction of dismissal, as the intolerability thereof is subjective in nature – as long as the dismissal is reasonable, it will stand even if challenged.
What is very important in such cases is that the employer must lead evidence to show that the trust relationship has in fact broken down and cannot be repaired.
If confronted with similar situations or any other labour-related challenges, employers are urged to
seek labour law advice from reputable labour law advisers in order to navigate the mine fields.