Many employers have a comprehensive disciplinary code and procedure which provides for a whole array of different transgressions and proposed sanctions. If is often a difficult task to decide which charge in the disciplinary code and procedure fits the transgression. It is, however a very crucial and necessary exercise to perform, as the employer will be stuck with these charges right through the life of the disciplinary action and possible arbitration thereafter.
This is when, if the complainant does not apply his mind, when charges are split and employees end up with a host of charges, when scrutinized ends up to be charging the employee twice or even more for the same offence.
Another practice frequently used by employers is to use overarching charges such as: conduct in breach of the trust relationship. Breach of the trust relationship is the test to be applied to determine whether the employee should be dismissed or not. If there is no evidence of such a breach, then the employer cannot dismiss and should apply corrective action.
The decision of the Labour and Labour Appeal courts and finally the Supreme Court of Appeal in Edcon Ltd v Pillemer NO & othershas attracted considerable attention, especially when it comes to charging employees and how to word those charges. Employers use various charges for dishonesty offences and often and purposefully word the charges as comprehensive as possible to ensure that the evidence supports the claim. In this case, the employee was charged with breaking the trust relationship with the employer. We know that this is the ultimate tests to apply before we dismiss, but how do we prove that the trust broke down in order to warrant dismissal?
Generally, the Supreme Court of Appeal’s decision is now cited as authority for this proposition, and, given the widespread impact this has on disciplinary enquiries and subsequent arbitrations, it is an important decision as regards day-to-day practice. No employer should ignore this decision and its implications. In any case where the question of breach of trust becomes relevant, it should be led by evidence by the employer and chairpersons should not assume a break down by virtue of their knowledge of the employer’s business or their own views.
The facts in this case are somewhat lengthy. In terms of the company’s policy, the employee was entitled to the use of a Toyota Corolla. The car was involved in an accident while her son was driving it. She was not in the car at the time. The policy did not expressly forbid her son from driving the vehicle; the only requirement was that the driver has a valid driver’s licence. Her husband repaired the vehicle in his panel-beating business, which was against the policy. She also did not report the incident because she was under the impression that she was in breach of the policy by allowing her son to drive. She then began to have problems with the vehicle’s performance and it was taken in to a Toyota dealership. The service personnel then discovered the damage to the vehicle which had apparently not been repaired properly.
She approached her manager to authorise a payment for the repair to the vehicle, but she failed to disclose to him that the vehicle had been involved in an accident. She actually went further: she initially denied that the vehicle had been in a collision. Only later did she admit the collision, but again lied by saying that she was driving at the time. She persisted with the lie when questioned about it. Finally, she came clean, admitting that her son drove the vehicle and offering to pay for the repairs.
She was then charged that she failed to be honest and failed to act with integrity in that she committed an act which has affected the trust relationship between the employer and the employee in that she failed to report an accident of a company vehicle which was driven by her son on the day of the accident. Furthermore, that this act resulted in a breach of trust between her and the company.
She was dismissed because she had breached values highly regarded by Edcon and therefore broke the trust relationship with the employer. In applying the test of a reasonable decision maker, the SCA looked at the decision of the commissioner and the facts to her disposal to determine whether the employee should have been dismissed for the charge of breaking the trust relationship. If found that what becomes immediately apparent is that the witnesses’ evidence called in the arbitration did not, and could not, deal with the impact of the employee’s conduct on the trust relationship. Neither did the witness testify that her conduct had destroyed the trust relationship. This was the domain of those managers to whom she reported. They are the persons who could shed light on the issue. None of them testified. In essence therefore, the employer did not bring the evidence to support the charges.
The SCA then looked at what evidence would be necessary to show a break in the trust relationship:
- Firstly it dealt with the policy she broke. The policy, it found, is a document and is just that – a policy – and is no evidence of the consequences of misconduct based on it. The mere production thereof would not suffice to justify a decision to dismiss.
- The crux of the case against the employee was that her conduct breached the trust relationship. Someone in management and who had dealings with her, was required to tell in what respects Reddy’s conduct breached the trust relationship.
- No evidence was adduced to identify the nature and scope of her duties, her place in the hierarchy, the importance of trust in the position that she held or in the performance of her work;
- or the adverse effects, either direct or indirect, on Edcon’s operations because of her retention, e.g. because of precedent or example to others.
- Furthermore, the seriousness of dishonesty – i.e. whether it can be stigmatised as gross or not – depends not only, or even mainly, on the act of dishonesty itself but on the way it impacts on the employer’s business as well. Evidence showing adverse impact, if any, on the “business” is critical and must be presented via evidence or testimony.
- Importantly it should be remembered that the chairpersons of the disciplinary hearing and appeal hearing are not witnesses and cannot provide the management view regarding the damaged trust relationship. Their role in those proceedings was not as witnesses. In this case, a witness actually stated that she could work with the employee in future.
- The employee’s record also played a role. She had very long years of service which was considered by the commissioner.