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Home Archive Discipline & dismissal An alleged breakdown in trust must be proved
Saturday, 18 November 2017
An alleged breakdown in trust must be proved

Accidents with employees at the wheel of company vehicles do arise from time to time. However, in the Labour Appeal Court case of Edcon Ltd v Pillemer, the CCMA & 1 other (DA4/06), the court had to deal with a circumstance in which an employees son had an accident in a company vehicle. The primary issue in question however, was the burden placed on employers to prove an alleged breakdown in trust which warrants dismissal.

It was common cause that the employee knew that within twenty four hours of an accident, she was required to (1) report an accident to the police, (2) obtain a case number, (3) report the accident to her employer and the insurance company and (4) complete and sign an accident claim form. Furthermore, the employee was aware of the fact that in the event of an accident in her company vehicle, no repairs could be undertaken on the vehicle without the approval of the insurance company.

The employees husband repaired the vehicle in his panel beating workshop at his own cost. The employee did not report the accident, and initiated the repairs by her husband in the erroneous understanding that her son was not covered by the insurance policy, when in fact he was.

The employer got wind of the accident some six months later. The employee initially denied any knowledge of the accident when confronted by the employer, but subsequently confirmed it to be true. The employee had seventeen years service and was two years away from retirement.

The employee was charged with impacting on the trust relationship by not reporting the accident; she pleaded guilty and was found guilty, after which she was dismissed.

The employee successfully challenged the fairness of her dismissal at the CCMA which found the dismissal to have been substantively unfair as the employer had led no evidence that the employment relationship had broken down. The Labour Court dismissed the employers review of this award.

The Court was required to apply its mind to the employees contention that the sanction of dismissal, especially in light of her prevailing mitigating circumstances. It was further argued that there had been inconsistency in the application of the sanction in relation to similar offences in the past. The primary enquiry in the Appeal was however whether the Labour Court was wrong not to interfere with the award of the commissioner (ie: to vary the sanction).

The LAC judgment concluded that the employer had not proved the alleged irreparable breakdown in trust, not attached sufficient importance to the employees unblemished seventeen year record and imminent retirement.

The appeal was dismissed.

This case highlights the need for employers to substantiate an alleged irreparable breakdown in trust when raising trust as a factor justifying dismissal, or any other such severe sanction, is argued in aggravation.

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First published in The Star Workplace on 3 June 2015