How do the courts deal with the dismissal of an arrested employee when the trust relationship has been damaged?
Case law: Visser vs Woolworths  11 BALR 1216 – Dismissal of an arrested employee when the trust relationship has been affected.
The facts of the case: In Visser vs Woolworths  11 BALR 1216, an employee was arrested on a charge of theft from a department store owned by a Woolworths’ competitor.
Before she was convicted, Woolworths dismissed her due to her arrest. This was on the grounds that she had a number of subordinates who were supposed to look up to her and she could no longer be trusted.
What the court ruled:
The arbitrator recognised Woolworths’ right to dismiss an employee if the trust relationship has been irrevocably damaged. But, as Woolworths did not prove Visser was guilty of theft and had not even tried to, it could not show Visser could not be trusted. The dismissal was found to be unfair and Woolworths had to pay Visser eight months’ remuneration.
What can be learned from the case?
If an employer can prove the arrest destroyed the trust relationship, it may be justified in terminating the employment, but proving the destruction of trust is extremely difficult. Merely alleging damage to the trust relationship is not enough.
To prove destruction of the employment relationship the employer needs to show why the employee’s actions would destroy trust in the context of the workplace. It also needs to be proven that the employee was responsible for the alleged criminal act in question. Saying the employee is responsible for the alleged criminal act just because the employee has been arrested, is not enough as the employee is innocent until proven guilty.
To prove a breakdown in the trust relationship before a criminal conviction, the employer would need to prove independently that the employee is guilty of some form of dishonesty. For example, if an employer is a bank and it can be proven the arrested employee was guilty of bank robbery, this is likely to justify the belief that the employee cannot be trusted to work at the bank.
Employers need to make sure that they do not make the same mistake on the dismissal of an arrested employee when the trust relationship has been damaged.