The Code of Good Practice: Dismissal (The Code) imposes a number of requirements on an employer who is contemplating dismissing an employee for misconduct. Three of these requirements are:

1. When contemplating dismissal, the employer should first consider factors such as the employee’s length of service and previous disciplinary record
2. The misconduct must be serious and of such gravity that it makes a continued employment relationship intolerable.
3. An employee should only be dismissed for infringement if he/she has been found guilty of gross misconduct such as, for example:

• Wilful damage to the property of the employer;
• Wilful endangering of the safety of others;
• Physical assault on the employer, a fellow employee or a client;
• Gross insubordination; and
• Gross dishonesty

Dishonesty has traditionally been seen as a serious offence and one that could render an employment relationship intolerable. This is because dishonesty damages the ability of the employer to trust the employee.

In the past, where an employee has stolen from the employer, judges and arbitrators have accepted that such dishonesty, by its very nature, has rendered continued employment intolerable. However, more recently there has been a noticeable shift away from this view. It has been pointed out that the Code recommends dismissal for “gross” dishonesty rather than for all dishonesty and that therefore, not all acts of dishonesty make the employment relationship intolerable or merit dismissal.

Adding to the complexity of the debate is the fact that the concept of trust is a tricky one to define. However, I would like to suggest that, in a labour law context, the employee’s duty of trustworthiness means that the employer has the right to expect the employee to behave honestly at all times without having to be monitored. The Courts have frequently supported this view and have therefore upheld employer’s decisions to dismiss. In the case of Shoprite Checkers (Pty) Ltd vs the CCMA (CLL Vol. 18 August 2008 case number JA 08/2004) the employee was dismissed for consuming the employer’s food without paying. Both the CCMA and Labour Court found the dismissal to be unfair and the employer, therefore, went to the Labour Appeal Court (LAC) which found that:

• The employee had a clean disciplinary record and had worked for the employer for nine years
• However, the employee had acted in flagrant violation of the employer’s rules
• The trust relationship had broken down
• The dismissal had been fair

In the case of Shoprite Checkers (Pty) Ltd vs the CCMA (CLL Vol. 18 August 2008 case number JA 46/05) the circumstances were amazingly similar to the one discussed above in that the same employer was involved and the employee was also dismissed for consuming the employer’s food without paying. However, in this case, the LAC found that the employee had 30 years of service and was a first offender. The LAC, therefore, agreed with the CCMA that the dismissal had been too harsh. It is very unclear whether it was the stronger mitigating circumstances of the second case that made the difference or whether the LAC judges sitting in the two cases interpret the law differently.

Either way, the uncertainty makes it dangerous for employers to continue to rely on what used to be tried and trusted legal principles when dismissing employees. Instead, employers need now, more than ever before:

• To take note of mitigating circumstances but show clearly why they are outweighed by other factors
• To ensure that they are able to justify the dismissal by proving that the employee’s conduct rendered a continued employment relationship intolerable
• To bring this proof to the CCMA and convince the arbitrator that the employee’s conduct did not merely damage the working relationship but, in fact, destroyed it.

This is not an easy task because many employers do not have an in-depth understanding of what arbitrators see as ‘intolerable’ or as a ‘destruction of trust’. Employers are therefore advised to consult a reputable labour law expert before deciding to dismiss any employee.

Ivan Israelstam is the Chief Executive of Labour Law Management Consulting. To buy our e-book Walking the New Tightrope, please contact Ivan via (011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za.