Most Recent Publications

Breaking News



Crucial evidence in dismissal cases

By Verlie Oosthuizen, Partner in the Employment Law, Shepstone & Wylie Attorneys

 

When employers have taken the drastic step of dismissing an employee for misconduct they obviously hope that the employment relationship is permanently terminated. However, it does not automatically follow that an employment tribunal or court will agree with the employer's decision to dismiss. In order to have the best chance of having their decision to terminate upheld by a commissioner or judge, the employer must present comprehensive evidence to support their conclusion.

 

One of the most important categories of evidence for employers to present has, for many years, been proof that the employment relationship has irretrievably broken down and that the employee can no longer be trusted.  The need for direct evidence on this point was set out in the 2008 Supreme Court of Appeal decision of Edcon Ltd v Pillemer N.O.

 

Recently there have been a number of Labour Appeal Court cases, namely Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others (2015) 36 ILJ 1453 (LAC) and Woolworths (Pty) Ltd v Mabija and others [2016] 5 BLLR 454 (LAC) which state that the need to lead evidence about the breakdown in an employment relationship may not be strictly necessary in certain circumstances.  In the Woolworths case it was held that when the misconduct is proved and is sufficiently serious, for example, sexual harassment or theft, it can be presumed that the employment relationship has broken down because the "gravity of the misconduct speaks for itself".  However, it held that where the misconduct is less serious, evidence of the breakdown of the trust relationship should be led.

 

In our opinion it would be unwise to take the risk of failing to lead direct evidence on the breakdown of the employment relationship in any unfair dismissal arbitration. Proof of the breakdown of the trust relationship is powerful, even in cases where the misconduct is so serious that it is obvious. It is even more important in cases where there is any doubt about the gravity of the misconduct. Employers should seek proper legal advice regarding the type of evidence that needs to be led when their decision to dismiss has been challenged.

 

For more information kindly contact Verlie Oosthuizen at  This email address is being protected from spambots. You need JavaScript enabled to view it.

Article published with the kind courtesy of Shepstone & Wylie Attorneys formore information please visit http://www.wylie.co.za

 

 

Courses and Workshops

Our Clients

 

Managing Day to Day Issues/ Problem Employees Full day workshop

29 September 2017

Southern Sun: Elangeni & Maharani, Elangeni Towers: Durban

13 October 2017

Southern Sun: OR Tambo International Airport

Workshop Policies and Procedures

05 October 2017

Southern Sun: OR Tambo International Airport

Basic Labour Relations

06 October 2017

Emperors Palace: Convention Centre

Skills Development Committee Training

12 October 2017

Southern Sun/Tsogo Sun Hotel: Or Tambo International Airport

19 October 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

Workshop Chairing Disciplinary Hearings

12 & 13 October 2017

Emperors Palace: Convention Centre

Skills Development Legislation and Review

18 October 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

26 October 2017

Emperors Palace: Convention Centre

The OHS Act and the Responsibilities of Management

27 October 2017

Southern Sun/Tsogo Sun Hotel : Or Tambo International Airport

17 November 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

Health and Safety Representative Course

03 November 2017

Emperors Palace: Convention Centre

15 November 2017

Protea Hotel By Marriott Tyger Valley: Cape Town

Occupational injuries and diseases in the workplace

08 November 2017

Southern Sun/Tsogo Sun Hotel : Or Tambo International Airport

16 November 2017

Protea Hotel By Marriott Tyger Valley: Cape Town