The Breakdown of the Trust Relationship and Intolerability in the Context of Reinstatement in the Modern Law of Unfair Dismissal (1)
One of the principles firmly established in Masetlha v President of the Republic of South Africa 2008 1 SA 566 (CC) is that the remedy of reinstatement cannot be ordered where the trust relationship between the employer and the employee has broken down irretrievably. As much as this case was not decided on the basis of the Labour Relations Act 1995 (LRA), it has had the effect of influencing determinations based not only on the remedy of reinstatement canvassed under the auspices of that Act, but also of all other enactments dealing with dismissal from employment. Apart from the recent case of Moyane v Ramaphosa 2019 ZAGPPHC 835 which, like in Masetlha, also involved the legality or rationality of the constitutional exercise of the executive power of the President, there are other cases involving the application of interim interdicts seeking to enforce the reinstatement of the Chief Executive Officers of an SOE; a business corporation and quite a number invoking the interpretation of section 193(2)(b) of the LRA. This discussion, therefore, sets out to investigate the ramifications of the various employment-related legislation wherein the employees suspended for misconduct pending disciplinary enquiry or dismissed for misconduct which turns out to be unfair seek reinstatement as a remedy. And, in either case, breakdown of the trust relationship or intolerability comes up for discussion.
Keywords: Reinstatement; breakdown of the trust relationship; intolerability; fair and equitable order; specific performance; interdicting suspension; employer-employee relationship; incompatibility
Speculum Juris Volume 35