by Jacques Botha Adv. Dip. Labour Law
© 2000 Henk Botha & Associates cc
You may not reproduce this Report in any way without
the express written permission of Henk Botha & Associates cc,
P.O. Box 72954, Lynnwood Ridge 0040, South Africa
This report describes South African law.
Trust is the corner stone of any employment relationship. If the employee breaches that trust, an employer may have legitimate cause for dismissal, taking all the factors into consideration.
The Code of Good Practice: Dismissal, Schedule 8 to the LRA, gives the following guidelines that one should consider when deciding the sanction for an employee who committed misconduct:
Seriousness
of the misconduct;
But what must you do when an employee shows no remorse? The Code does not deal with remorse of an employee as a factor in mitigation. If the employee does not take the first step towards rebuilding the trust by showing remorse, how can one expect the employer to continue with the employment relationship?
In De Beers Consolidated Mines Ltd. v CCMA & Others (Case Number JA68/99) Labour Appeal Court, Conradie JA said the following at [25]:
"Acknowledgment of wrongdoing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken. Where, as in this case, an employee, over and above having committed an act of dishonesty, falsely denies having done so, an employer would, particularly where a high degree of trust is reposed in an employee, be legitimately entitled to say to itself that the risk of continuing to employ the offender is unacceptably great."
What does this mean in practice for the practitioner?
Quite simply, that when an employee has committed misconduct, he or she must show remorse. If he or she does not show remorse, one cannot expect the employer to continue to employ him or her. This is especially true in cases where an employee holds a position of trust.