Easi Access Rental (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others (unreported case no JR 385/14, 10-12-2015) (Molahlehi J)

By Saber Ahmed Jazbhay

Even though no evidence has been led to support the claim that the trust relationship between employer and employee has broken down, thus making that relationship unworkable, there’s case law that suggests that the nature and seriousness of misconduct can be enough to infer the breakdown of the trust relationship without evidence being led to prove the breakdown. See Easi Access Rental (Pty) Ltd v Commissioner for Conciliation, Mediation and Arbitration and Others (unreported case no JR 385/14, 10-12-2015) (Molahlehi J).

In the Easi Access case, the employee was dismissed by the applicant after being found guilty on five charges of misconduct, including, inter alia, dishonesty and gross negligence. The employee, a payroll officer, had allegedly disclosed all of the employer’s payroll information to a fellow employee.

The employee referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and the commissioner relying on Edcon Ltd v Pillemer NO and Others [2010] 1 BLLR 1 (SCA) found that the dismissal was unfair on two grounds –

• firstly that he did not find the employee guilty of all the charges against him; and
• secondly that there was no evidence produced by the employer to show that the trust relationship had broken down between the parties.

The Supreme Court of Appeal, in the Edcon matter found the dismissal of an employee was inappropriate where an employer alleged that the employee was dismissed because the trust relationship had broken down and then failed to lead evidence to confirm or support this allegation. In the Easi Access matter, the judge found that in cases where direct evidence of the breakdown has not been led, the inquiry into the fairness of the dismissal by the commissioner should include a determination of whether or not the breakdown can or cannot be inferred from the nature of the offence.

In support of this position, the judge referred to Department of Home Affairs and Another v Ndlovu and Others [2014] 9 BLLR 851 (LAC), where it was held that the employer has an obligation to lead evidence to justify a dismissal, unless of course the conclusion of a broken relationship is apparent from the nature of the offense and/or circumstances of the dismissal.

Accordingly, so the reasoning goes, in determining the fairness of the sanction, the nature of the offence, the seriousness of the misconduct and the circumstances of the case had to be considered. This decision supports the point that even though evidence relating to the breakdown in the trust relationship between the parties in a dismissal case is of critical importance in the assessment of the fairness or otherwise of the dismissal, where no such evidence has been led, the commissioner still has to determine whether the breakdown in the trust relationship cannot be inferred from the nature and extent of the misconduct and the surrounding circumstances as a whole.

To summarise, Edcon is not the authority for the often misconceived proposition that in order to sustain its decision to dismiss an employee, the employer must always and without failure adduce direct evidence to show a breakdown in the trust relationship. We need to move beyond Edcon.

Saber Ahmed Jazbhay BA LLB (UDW) LLM (UKZN) is an attorney at Jazbhay & Hurrichund and part time commissioner for the Commission for Conciliation, Mediation and Arbitration in Durban.

This article was first published in De Rebus in 2016 (Nov) DR 51.