The common term “justice delayed, is justice denied” holds weight in our law and is even enshrined in our Constitution. But how does it affect the Trust relationship when the dismissal of an employee is in the issue?
The Department of Public Works, Roads and Transport v Motshosa and others [2005) BLLR 957 (LC) and Riekert vs CCMA and Others (2006) 4 BLLB 353 are cases wherein the Labour Court had found that the delay between the actual misconduct and the date of the disciplinary hearing were unjustified, and as a result of the employers failing to provide adequate reasoning for the delay, the dismissals were found to have been unfair.
Let us consider the Trust relationship in relation to the period mentioned above, that is, the period between the actual misconduct of the employee and the date of the disciplinary hearing (“the hanging period”). When dismissal is deemed to be an appropriate sanction, the Trust relationship may be seen as a two-legged creature which is capable of being interpreted in two ways. Let us explain this as follows:
1. If the employer suspends the employee (with full pay) during the hanging period, this may very well be an indication that the employer is unable to trust the employee in the working environment and as such would be a factor which indicates that the trust relationship has been affected negatively. In this regard, an irreparable trust relationship would be an aggravating factor which could depend on the seriousness of the employee’s misconduct, justify the employee’s dismissal.
On the other hand, what if the employer has no choice but to have the employee perform his or her duties during the hanging period? How would this affect the trust relationship?
This brings us to the second leg of the Trust relationship.
2. If the employer allows the employee to work during the hanging period, there can be no doubt that a level of trust is being placed on the employee in the performance of his or her duties. This can most certainly be accepted as an indication that there is still a level of trust between the employer and the employee. In this regard, the Trust relationship cannot, in essence, be said to have been broken down to a point of no return or repair.
The short answer then is that the trust relationship is dependent on each situation and will also depend on the length of the hanging period. Although it may seem far-fetched, a diligent employer, depending on the circumstances, may be able to rely on the fact that the employee was put to work during the hanging period because the employee is “innocent until proven guilty” and that his or her innocence will be determined at his or her disciplinary hearing. Adopting this view will most certainly circumvent the haze which clouds the trust relationship during the hanging period.
ABOUT THE AUTHOR
Nicolan Achary joined SEESA in 2018 and works at the Durban SEESA office. He currently holds the position of SEESA Labour Legal Advisor. He is an LLB graduate of the University of South Africa and Admitted as an Attorney of the High Court.