Case Note: The breakdown of the trust relationship between employer and employee as a ground of dismissal: Interpreting the Labour Appeal Court’s decision in Autozone

• Jurisdiction: South Africa
• Published date: 19 January 2021
• Pages: 156-174
• Author: Tshoose, C.I.
• Citation: (2020) 32 SA Merc LJ 156
• Date: 19 January 2021

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Case Note

THE BREAKDOWN OF THE TRUST

RELATIONSHIP BETWEEN EMPLOYER AND

EMPLOYEE AS A GROUND OF DISMISSAL:

INTERPRETING THE LABOUR APPEAL

COURT’S DECISION IN AUTOZONE

CI TSHOOSE

Professor in Mercantile and Labour Law, University of Limpopo

R LETSEKU

Senior lecturer in Mercantile and Labour Law, University of Limpopo

I INTRODUCTION

The employment relationship is grounded on the fundamental values of

trust, conf‌idence, reliability, loyalty, mutual respect and good faith.

Consequently, these fundamental values form the heart of the employ-

ment relationship which ought to be exercised by both the employee and

employer at all material times during the subsistence of their relation-

ship (National Union of Metalworkers of South Africa obo Nganezi &

others v Dunlop Mixing and Technical Services (Pty) Limited & others

(2019) 40 ILJ 1957 (CC) para 62; National Commissioner of the SA Police

Service & another v Mphalele & another (2019) 40 ILJ 806 (LAC) para 19;

Grogan, Employment Rights 3 ed (Juta 2019) 67–70; Raligilia, ‘A

Ref‌lection on the Duty of Mutual Trust and Conf‌idence: Off-duty

Misconduct in the Case of Biggar v City of Johannesburg Revisited’

(2014) 38(2) African Journal of Employee Relations 70–75).

The Labour Appeal Court in Malamlela emphasised that an appropri-

ate degree of mutual trust, respect and courtesy ought to be displayed by

both the employer and employee (Malamlela v SA Local Government

Bargaining Council & others (2018) 39 ILJ 2454 (LAC) para 28). Bosch

asserts that parties to the employment relationship have a reciprocal

duty to conduct themselves in a manner which will not destroy the

relationship of trust and conf‌idence (Bosch, ‘The Implied Term of Trust

and Conf‌idence in South African Labour Law’ (2006) 27 ILJ at 28;

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(2020) 32 SA Merc LJ 156

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Maloka, ‘Derivative Misconduct and Forms Thereof: Western Refinery

Ltd v Hlebela (2015) 36 ILJ 2280 (LAC)’ (2016) 19 PER 13).

Over the years, labour courts, tribunals and academics have grappled

with the issue of the breakdown of trust as a ground that justif‌ies the

dismissal of an employee in the workplace (Edcon Ltd v Pillemer 2010 (1)

BLLR 1 (SCA); Miyambo v CCMA (2010) 31 ILJ 2031 (LAC); Depart-

ment of Home Affairs v Ndlovu & others 2014 (9) BLLR 851 (LAC);

Wereley v Productivity SA & another (2020) 41 ILJ 997 (LC); Absa Bank

Ltd v Naidu & others (2015) 36 ILJ 602 (LAC); Msunduzi Municipality v

Hoskins (2017) 38 ILJ 582 (LAC); Masetlha v President of the Republic of

South Africa 2008 (1) SA 566 (CC); Van Niekerk A et al,Law@work 4ed

(LexisNexis 2017) 296).

It is beyond contention that cases dealing with the fairness of

dismissals arising from the employee’s breach of duty of mutual trust

and conf‌idence populate the law reports. A recent decision of the Labour

Appeal Court makes an interesting addition to this evolving body of

jurisprudence. In Autozone v Dispute Resolution Centre of Motor Industry

& others 2019 (6) BLLR 551 (LAC) (Autozone), Murphy JA examined the

thorny issue of the breakdown in the trust relationship where the

aberrant employee had fabricated the amount to be paid to the casual

workers. Against the backdrop of Autozone, this note grapples with the

issue of the intolerability of a continued employment relationship in

three parts. First, the extent to which the dishonesty damages the

substratum of the employer–employee relationship warrants close

scrutiny. At issue is the all-encompassing duty of mutual trust and

conf‌idence upon which the employment relationship is predicated.

Second, there is the vexed issue of the breakdown of the trust relation-

ship. In the light of the contrasting outcomes of the Commission for

Conciliation, Mediation and Arbitration (‘CCMA’), the Labour Court

and the Labour Appeal Court in Autozone, the question that can be

asked relates to the following: Does the employer’s failure to advance

evidence as to the breakdown of the trust relationship mean that the

conduct of the employee, regardless of its severity, can attract a sanction

of dismissal? The third issue concerns the interplay between the

intolerability and ‘the non-reinstatable conditions’ in section 193(1) of

the Labour Relations Act 66 of 1995 (‘LRA’) (Mediterranean Textile Mills

(Pty) Ltd v SA Clothing & TWU (2012) 33 ILJ 160 (LAC) para 28). As a

f‌inal point, this case note explores the social role of the labour dispute

resolution forums in as far as assisting litigants to resolve their dispute

amicably, in particularly in cases where the relationship between the

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