Author: Hedda Schensema – Director & Phetheni Nkuna – Director
An employer must not only allege a breakdown in the trust relationship, evidence must be led.
In the matter of Woolworths (Pty) Ltd v Mabija and Others (PA3/14) [2016] ZALAC 5; [2016] 5 BLLR 454 (LAC) (19 February 2016), Mabija was employed as a controller (also called a "weekend manager") at Woolworths' Port Elizabeth store, which received its stock from a warehouse in Cape Town by truck. Upon receipt, cold chain products had to immediately be put into the cooler once offloaded. Stock that did not have to be refrigerated were put on ambient dollies, whereas stock requiring cold storage were put on special cold chain dollies.
During the evening of 18 October 2010, Mabija and three other employees offloaded a truck, but failed to put stock worth R3675 in a cold chain dolly and place it in the refrigerator. As a result, the goods were spoilt. They also failed to offload a pallet of long-life products that was brought by another truck.
Mabija was charged with gross misconduct for failure to comply with Woolworths' cold chain policy and procedure. He was further charged for leaving the pallet unattended, despite having acknowledged receipt and confirmed in writing that it was offloaded. He was found guilty and dismissed.
Pursuant to his dismissal, he referred an unfair dismissal dispute to the CCMA. The arbitrator found that his dismissal was substantively unfair, and ordered his reinstatement. On review, the court upheld the arbitrator's decision. Woolworths appealed the decision before the LAC on grounds that the arbitrator had misconceived the nature of the enquiry as he had stated that he was called upon to determine whether the sanction imposed on Mabija was appropriate as opposed to fair in the circumstances. Woolworths further submitted that there was oral evidence by Mabija's supervisor before the court that the relationship of trust had broken down and that the arbitrator's finding in this regard was incorrect.
The LAC held that it was clear that the arbitrator was aware that in determining whether the dismissal for misconduct was fair, he had to consider whether the sanction imposed by the employer was fair. He had not misconceived the nature of the enquiry. Of essence, the supervisor did not testify at the disciplinary enquiry, but only at the arbitration. The arbitrator, however, found that the evidence before him was insufficient to show that the trust relationship had broken down. The supervisor did not testify that the trust relationship had been destroyed and he did not testify as to what the impact of this incident was on the trust relationship. The LAC accordingly dismissed the appeal.
It is clear from this decision that it is insufficient for an employer to merely allege a breakdown in the trust relationship. Evidence must be led at the disciplinary enquiry and arbitration to show how the specific instances of an employee's misconduct destroyed the trust relationship. The review court stated that "…it is not enough for an employer to merely state that the trust relationship has broken down. It is necessary for evidence to be led to prove the breakdown of the trust relationship". It also found that the trust relationship does not automatically break down each time an employee commits misconduct.
This, however, does not mean that in the absence of evidence from the employer, a dismissal will not be warranted. The LAC quoted with approval the decision of the SCA in Edcon Ltd v Pillermer NO and Others (2009) 30 ILJ (SCA) [at para 19]: "The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonesty, cannot be visited with dismissal without any evidence as to the impact of the misconduct. In some cases, the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed. It is however always better if such evidence is led by people who are in a position to testify to such break down."
In short, employers are well advised to lead proper evidence of a breakdown in the relationship or face the prospect of reinstatement.
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