The intolerability of the continuation of the employment relationship can be caused by misconduct other than dishonesty or breach of trust, for instance, an employed could argue that an employee who sexually harassed a colleague severely damaged working relationships between employees and/or damaged the employer’s reputation.
However, the employer must still prove that this damage was serious enough to make continued employment intolerable.
For example, in the case of Maepe vs Commission for Conciliation, Mediation and Arbitration & another (CLL Vol. 17 June 2008) a senior commissioner at the CCMA was dismissed due to charges of sexual harassment and improper
or disgraceful conduct. A CCMA receptionist had accused the senior commissioner of having professed his love for her, blown her kisses and told her that he clutched her photo to his chest.
The accused commissioner then challenged the fairness of the dismissal decision.
The Labour Appeal Court (LAC) sided with the arbitrator who found the dismissal to be unfair because there was no evidence that the employment relationship had either been materially damaged or had become intolerable.
On the contrary, the employer had allowed the employee to continue working for five months after his conduct had been reported.
This case decision shows that persuading an arbitrator that the employment relationship has truly been destroyed is very difficult. The reasons for this, other than the facts of the case are that:
- The modern arbitrator is more and more likely to look for reasons to preserve the employee’s job.
- The concept of intolerability has at least as many subjective elements as it has objective elements. What the angry employer feels to be intolerable might not be seen in that light by an arbitrator who is more emotionally removed from the situation.
In the light of the above employers should:
- If they believe that the misconduct does merit dismissal, be able to set aside their anger and prove objectively that the employee has made continued employment relationship intolerable by his/her actions.
- Ensure that their charging officers and hearing chairpersons are given thorough and updated training in the importance of acquiring proof and methods for acquiring it.
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