When employers have taken the drastic step of dismissing an employee for misconduct they obviously hope that the employment relationship is permanently terminated. However, it does not automatically follow that an employment tribunal or court will agree with the employer's decision to dismiss. In order to have the best chance of having their decision to terminate upheld by a commissioner or judge, the employer must present comprehensive evidence to support their conclusion.

One of the most important categories of evidence for employers to present has, for many years, been proof that the employment relationship has irretrievably broken down and that the employee can no longer be trusted.  The need for direct evidence on this point was set out in the 2008 Supreme Court of Appeal decision of Edcon Ltd v Pillemer N.O.

Recently there have been a number of Labour Appeal Court cases, namely Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others (2015) 36 ILJ 1453 (LAC) and Woolworths (Pty) Ltd v Mabija and others [2016] 5 BLLR 454 (LAC) which state that the need to lead evidence about the breakdown in an employment relationship may not be strictly necessary in certain circumstances.  In the Woolworths case it was held that when the misconduct is proved and is sufficiently serious, for example, sexual harassment or theft, it can be presumed that the employment relationship has broken down because the "gravity of the misconduct speaks for itself".  However, it held that where the misconduct is less serious, evidence of the breakdown of the trust relationship should be led.

In our opinion it would be unwise to take the risk of failing to lead direct evidence on the breakdown of the employment relationship in any unfair dismissal arbitration. Proof of the breakdown of the trust relationship is powerful, even in cases where the misconduct is so serious that it is obvious. It is even more important in cases where there is any doubt about the gravity of the misconduct. Employers should seek proper legal advice regarding the type of evidence that needs to be led when their decision to dismiss has been challenged.