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Onus of Proof and Employer’s Obligation during Dismissal Disputes

By Magate Phala


When an employee who has been discharged for misconduct declares an unfair dismissal dispute at the CCMA or any relevant Bargaining Council, the employee must establish the existence of the dismissal. The employer is then required not only to prove that the dismissal was procedurally and substantively fair but also to show that the affected sanction of dismissal was an appropriate penalty in light of the circumstances of the employee’s transgression and all the relevant facts in their totality.


In Edcon Ltd v Pillemer NO & others [2010] 1 BLLR 1 (SCA), the court emphasised that in a dismissal dispute, the employer must lead evidence regarding the appropriateness of the dismissal as a sanction.


Section 192 of the Labour Relations Act, 66 of 1995 provides that


  1. in any proceedings concerning any dismissal, the employee must establish the existence of the dismissal, and

  2. if the existence of the dismissal is established, the employer must prove that the dismissal is fair.


Section 188 (1) of the Labour Relations Act supra further provides that a dismissal that is not automatically unfair, will be rendered unfair if the employer fails to prove:


 (a)      that the reason for dismissal is a fair reason and


 (i)       that it is related to the employee's conduct or capacity, or


 (ii)       that it is based on the employer's operational requirements and that


 (b)       the dismissal was effected by a fair procedure.


Any person considering whether or not the reason for dismissal is a fair reason or whether or not the dismissal was effected by a fair procedure must take into account the Code of Good Practice: Dismissal.


It is not a given that if the employee is found guilty of misconduct that a sanction of dismissal should be applied. Employers have a further duty to lead evidence showing that the employee by his conduct has breached the trust relationship. Moreover, in some cases, where the employee has been found guilty of dishonesty, employers may argue before the Commissioner that by applying the principle of Res Ipsa Loquitur and relevant case law that dismissal is the only suitable penalty.


In De Beers Consolidated Mines Ltd v CCMA & others [2000] 9 BLLR 995 (LAC) at para 22, the Court, per Conradie JA, held the following regarding risk management: ‘Dismissal is not an expression of moral outrage; much less is it an act of vengeance. It is, or should be, a sensible operational response to risk management in the particular enterprise. That is why supermarket shelf packers who steal small items are routinely dismissed. Their dismissal has little to do with society’s moral opprobrium of a minor theft; it has everything to do with the operational requirements of the employer’s enterprise.


In Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others [2008] 3 BLLR 241 (LC) at para 42 that:


‘the presence of dishonesty tilts the scales to an extent that even the strongest mitigating factors, like long service and a clean record of discipline are likely to have minimal impact on the sanction to be imposed. In other words whatever the amount of mitigation, the relationship is unlikely to be restored once dishonesty has been established in particular in a case where the employee shows no remorse. The reason for this is that there is a high premium placed on honesty because conduct that involves corruption by the employee damages the trust relationship which underpins the essence of the employment relationship.’


In Kalik v Truworths (Gateway) and Others [2008] 1 BLLR (LC), the Labour Court held that an employment relationship ‘…broken down as a result of an act of dishonesty can never be restored by whatever amount of mitigation. The underlying reason for this approach is that an employer cannot be expected to keep dishonest workers in his/her employ. The other reason for this is to send an unequivocal message to other employees that dishonesty will not be tolerated.


In Miyambo v CCMA & others [2010] 10 BLLR 1017 (LAC), the court held that business risk is predominantly based on the trustworthiness of company employees and that the accumulation of individual breaches of trust has economic repercussions.


Written by Magate Phala, who specialises in Labour Law, and writes in his private capacity. For more information, kindly contact Magate Phala at This email address is being protected from spambots. You need JavaScript enabled to view it.





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