Michael Bragraim writes that there is a golden thread that runs through our labour law and all our labour legislation. This thread consists of the trust relationship between the employer and employee. Photographer - Tracey Adams / ANA
There is a golden thread that runs through our labour law and all our labour legislation. This thread consists of the trust relationship between the employer and employee. The minute it can be said that this trust relationship has broken down then it is justifiable to terminate the employment relationship.
Throughout the history of our labour legislation, under the new democratic dispensation, we can see those dismissals can be justifiable if based on that broken trust relationship.
Every dismissal rests on two legs firstly, there must be good merit to justify the dismissal and secondly, that dismissal itself must have followed the proper procedure in ensuring that the dismissal was objective and not subjective. In essence, the employer has to show that the reason for the dismissal is legitimate and is serious enough to warrant the termination of the employment relationship.
Secondly, the employer will have to show that the person who made the recommendation of the dismissal was objective in all facets of the process. That person would not have had the facts before undergoing the objective “hearing”. The recommendation of dismissal would have to take into account a whole lot of factors surrounding the enquiry which took place before a decision had been made.
Invariably, once an employer can prove objectively, that the trust in the employee no longer exists then that objective chairperson would have to exercise his or her mind to show that the trust relationship truly is broken and that a fair procedure would take into account both sides of the argument has been followed.
Disciplinary hearings are not subject to the same rules and regulations as we see in our criminal law. Hearings to dismiss an employee are done on a balance of probabilities. In other words, the chairperson has to gain an impression, on a balance of probabilities, that in fact and indeed the trust relationship is broken.
In criminal cases on the other hand, it has to be proved beyond all reasonable doubt. The test in civil cases and administrative cases of this nature is not as stringent.
It is not incumbent upon the employer to prove something beyond reasonable doubt. The employer does not even have to prove that the employee him or herself committed the offence. For instance, if the employee, who is subject to the disciplinary hearing, was witness to a theft at the workplace but chose to remain silent, that employee could be shown to have broken the trust relationship between him or herself and the employer.
In an anecdotal story where there are two employees who had access to the safe, separately or jointly, and the money went missing. If it can be shown that it was only one or both of those employees who took the money, then it for an employer to try and show that either one or the other or both had taken the money.
If the employer cannot take that vital step to show which employee had taken the money or whether both had taken the money, then it would be appropriate in our labour law to dismiss both. This outcome might lead to an injustice for at least one of them.
The facts might show, on one or another occasion, that in fact it was the one and not the other. The dismissal of both would be appropriate as the trust relationship no longer exists.
In instances in cases of dishonesty an employer will not only dismiss but will also pursue the recovery of the goods or money that had been taken.
In instances such as this an employer, once the employer has proved the dishonesty, can seek to withhold the employee’s retirement fund benefits. Under normal circumstances the employer is not allowed to withhold the employees benefits however under a different section of the pension fund act it is allowed to deduct the pension funds in case of dishonest action by the employee.
If there were some sort of monetary loss and it can be shown that indeed the employee was dishonest then the employer can attach the pension monies. In reality it will be necessary for the employer either to obtain an admission or to obtain a court judgment. Many court cases have shown us that retirement benefits may be withheld pending the legal action.
The employer will ask the fund to hold back the payment of the monies until the outcome of the court case. The court must show that the employee had caused the damage to the employer and that damage was resulting from dishonest conduct by the employee. In order to convince the fund to withhold the money pending the outcome of the court case the employer will have to convince the fund that there is some clear evidence of wrongdoing.
Then the employer would have to take immediate legal action to try and prove the theft or the fraud. Withholding pension money has proved to be probably the best way to try and recover monies from the fraudulent employee.
* Michael Bagraim.
** The views expressed here are not necessarily those of Independent Media.
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