About Us
Altitude Employment Solutions is a business partnership between Altitude Facilities Management, a BBBEE company and Bagraims Attorneys in Cape Town.
Contact Info
HEAD OFFICE +27 21 761 5321
Altitude Employment Solutions is a business partnership between Altitude Facilities Management, a BBBEE company and Bagraims Attorneys in Cape Town.
HEAD OFFICE +27 21 761 5321
The employment relationship in South Africa is built on a foundation of trust, good faith, and honesty. In terms of the common law, an employee owes a fiduciary duty to their employer, meaning they must act in the best interests of the employer and not place themselves in a position of conflict. Similarly, the employer is expected to uphold fairness, dignity, and respect in managing the employee. When this trust relationship breaks down, the employment contract itself becomes untenable, often leading to dismissal.
This article explores what the common law trust relationship means, the scope of fiduciary duties owed by employees, how the CCMA and Bargaining Councils have interpreted the breakdown of trust, and at what point an employer may rely on it as a valid reason for dismissal.
The relationship between employer and employee is not just contractual but also fiduciary in nature. This fiduciary duty arises especially in situations where the employee occupies a position of responsibility, trust, or decision-making power.
Employees are expected to:
A breach of these duties can irreparably damage the employment relationship, making continued employment intolerable.
The Labour Relations Act, 1995 (LRA) recognises that dismissal must be substantively and procedurally fair. Substantively, the employer must show a valid and fair reason for dismissal. One of the most recognised valid grounds is the “breakdown of the trust relationship.” The Constitutional Court in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) ZACC 22 emphasised that the question is whether dismissal is an appropriate sanction in light of the misconduct and whether the employment relationship can continue.
Similarly, in De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC), the Labour Appeal Court held that the seriousness of misconduct must be weighed against whether the trust relationship has been destroyed. The Court made it clear that the employer is entitled to dismiss an employee if trust has been eroded to such an extent that continued employment is impossible.
The CCMA has repeatedly confirmed that where misconduct strikes at the heart of trust (such as dishonesty, theft, or gross negligence), dismissal is usually justified.
At What Point Can Employers Rely on the Breakdown of Trust?
Employers may raise the breakdown of trust as a reason for dismissal in two contexts:
1. As a standalone substantive reason for dismissal where the nature of the misconduct directly damages the trust relationship (for example, theft, fraud, dishonesty, gross insubordination). In such cases, the employer does not need to prove actual financial loss; the mere breach of integrity may be sufficient.
2. As an aggravating factor during disciplinary proceedings, where the misconduct itself may not ordinarily justify dismissal (for example, negligence or breach of policy), but the employer argues that the conduct has strained the trust relationship to the point of intolerability.
However, the employer cannot simply rely on “trust has broken down” without evidence. Case law such as Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) confirms that employers must demonstrate a factual basis showing why the employment relationship has become unsustainable.
–
No. Employers must be cautious not to use “loss of trust” as a blanket justification for dismissal in every case. In Shoprite Checkers (Pty) Ltd v CCMA & Others (2008) 29 ILJ 2581 (LAC), the court held that the employer must lead evidence to prove that the misconduct actually undermined trust. – The CCMA has often criticised employers for citing “loss of trust” without demonstrating why the misconduct has such a severe impact. This means that while trust breakdown can be a valid aggravating factor, it must be proven with clear reasoning, supported by facts, not just asserted.
When considering dismissal based on the breakdown of trust, employers should carefully evaluate:
In practice, the common law duty of trust is often embedded in an employer’s Code of Conduct, which sets out the behavioural standards expected of employees.
Misconduct that directly undermines this duty-such as dishonesty, theft, fraud, misrepresentation, gross negligence, unauthorised use of company property, breach of confidentiality, or gross insubordination – is typically listed as dismissible offenses.
Where these charges are clearly articulated in the Code of Conduct, it strengthens the employer’s position at the CCMA or Bargaining Council, as it demonstrates that employees were made aware that such conduct would not be tolerated. Importantly, to ensure that dismissal for a breakdown in trust “sticks,” the employer must not only phrase the charge correctly (e.g., “gross dishonesty” or “gross negligence”) but also show how the specific misconduct has destroyed the operational trust essential for the employment relationship to continue.
The trust relationship between employer and employee is central to South African labour law. While employers can rely on a breakdown in trust as a valid reason for dismissal, they must do so responsibly, ensuring that evidence supports the claim. The CCMA and Bargaining Councils will closely scrutinise whether the alleged breakdown is genuine and whether dismissal is a proportionate response.
At Altitude Employment Solutions, we guide employers through complex disciplinary matters and ensure compliance with labour law. Our experienced business partners provide hands-on advice and representation to protect your business and maintain workplace fairness.
Contact Altitude today to explore the complexities of the trust relationship and learn how to effectively manage it within your organisation. Our specialised labour law training equips business owners, senior management, and line managers with the practical knowledge and skills needed to navigate workplace challenges confidently.
Written by:
Justinne Lemkus Business Partner
