The Rotten Apple At Work – Intolerable Employees

Employment relationships in South Africa are perceived as difficult at the best of times.

If things go “pear shaped” and a disciplinary hearing follows suit, many employers assume that once an act of grave misconduct has been proven, there is no need to prove that the employment relationship has become intolerable. They believe that the intolerability of such misconduct is self-evident and does not require further clarification. This is a mistake. This misconception is particularly relevant during the conclusion of a disciplinary hearing when seeking a dismissal sanction and, therefore, critical to steer clear of.

The Law

While several cases prior to the commencement of the Labour Relations Act 66 of 1995 (“LRA”) used the idea of the intolerable relationship as a justification for dismissal, the most influential of the early cases was the judgment in Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) where it was stated: “The true question to be considered was whether or not what the respondent did had the effect of destroying, or of seriously damaging, the relationship of employer and employee between the parties so that the continuation of that relationship could be regarded as intolerable.”

Two sections of the LRA and one item of the Code of Good Practice have codified the principle: In s 186(1)(e) of the LRA, dismissal is defined to include a constructive dismissal — the situation where “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee'”. Secondly, in terms of s 193(2), the Labour Court (LC) or arbitrator, on finding that a dismissal is unfair, must require the employer to reinstate or re-employ the employee unless “the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable.”

The other mention of the intolerable relationship comes in item 3(4) of the Code of Good Practice: Dismissal, where it is provided:

“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.”

Thus, it goes both ways, and implicit in this is the idea that the norm is that the employment relationship should be ‘tolerable’. Of course, this is a descriptor of minimum standards, and ordinarily, we describe something as tolerable when a situation is far from ideal but can be put up with in the short term.

According to Alan Rycroft,[1] the “better antonym for ‘tolerable’ in this context is a word like ‘functional’, which avoids the ideological underpinnings of a word such as ‘optimal’. There are undoubtedly subjective elements that determine whether a relationship is functional enough to avoid the allegation of intolerability. There are many dismissal cases where the employer subjectively believed that the relationship had become intolerable, but an arbitrator or judge reached a different conclusion.”

What makes a relationship intolerable?

(a) The establishment and breakdown of trust

It is often said in legal cases that trust is a fundamental aspect of the employment relationship; this means that if the employer does not trust the employee, it could indicate that the relationship has become intolerable. However, there may be situations where an employee’s misconduct does not necessarily make it impossible to continue the working relationship. For instance, if the employee has previously shown competence and trustworthiness, a one-time act of misconduct, poor performance, or error in judgment, even if it causes financial loss, may not be enough to justify ending the relationship as was the case in the case of Edcon v Pillemer (2009) 30 ILJ 2642 (SCA).

(b) Incompatibility

Incompatibility describes a situation where the employment relationship has broken down because interpersonal relationships are tense, conflictual, or lacking in harmony. It has been defined as “the inability on the part of an employee to work in harmony either within the corporate culture of the business or with fellow employees.”

(c) Serious misconduct / Gross negligence

It has always been understood that the employer has the right to set reasonable performance standards and requires its employees to maintain these standards.

It is the degree of negligence that determines whether dismissal is justified. For example, in SACCAWU & another v Checkers Shoprite (Pty) Ltd (1996) 17 ILJ 753 (IC), where the employee was reckless and caused serious financial loss, dismissal will be fair. Where the negligence is not so gross as to warrant dismissal, the CCMA has reinstated but refused to order compensation for lost wages.

(d) Gross insubordination

One fundamental aspect of the employer-employee relationship is that the employee willingly agrees to follow the employer’s lawful and fair instructions, promote the employer’s business interests, and behave in a manner that demonstrates respect for the employer’s authority.

(e) Incapacity

Suppose an employee is aware of a specific performance standard that they must meet, and they are given a fair chance to reach this standard but still need to meet it. In that case, an inquiry may be conducted to determine whether dismissal is a fair punishment in the specific circumstances of the case. In assessing the appropriateness of the dismissal, alternate options that are less severe than dismissal should be taken into account.

(f) Criminality

Where criminal activity takes place during the employment relationship but not at the workplace, the courts have generally ruled that employers are competent to discipline the employee, particularly where the criminal activity has a detrimental effect on the employment relationship.

Proof

As shown above, the Labour Court generally assesses the fairness of a dismissal based on the proof of misconduct and the proof that the continued employment relationship is intolerable. Substantial evidence of the impact of the misconduct is suggested. This could be the fear of repetition, the breakdown of trust, or operational efficiency. It could also be that serious misconduct in a specific context is itself demonstrative of intolerability.

Suspension

One of the problems employers face is the implication of not suspending an employee pending a disciplinary hearing. If there is a delay in scheduling the disciplinary hearing, does this mean that there was enough trust by the employer to allow the employee later to argue that the trust relationship had not broken down? It follows that an employee should only be suspended pending a disciplinary enquiry in exceptional circumstances. As a result, not suspending an employee does not imply that the trust relationship has not broken down.

Conclusion

It is important to get expert guidance in conducting disciplinary hearings and implementing fair sanctions. Contact an expert at SchoemanLaw for assistance.

[1] The Intolerable Relationship – (2012) 33 ILJ 2271