After workplace rules are put in place, they are often forgotten or simply not enforced in practice. In light of the recent case of National Nuclear Regulator v CCMA (JR3104/12) [2016] ZALCJHB 177 (11 May 2016), it may be worthwhile to dust off the old workplace rules and policies and bring them to the attention of employees again.

The Labour Court considered the matter of a senior, long-standing employee who was dismissed for failure to adhere to normal working hours, unauthorised absence from the workplace and failure to comply with an instruction to attend at the workplace during normal working hours. The employee reasoned that he did not have transport after his car broke down and argued that the employer's failure to enforce the rule against him for 2½ years prevented the employer from doing so now. The employee referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on this basis. The CCMA made an order that the dismissal was substantively and procedurally unfair.

The Labour Court held that, although the employer had not enforced the rule against the employee in the past, the employer had restated the rule in June 2010. The restatement was achieved by circulating an email to all staff indicating the importance of working hours and accountability, the categories of employees who qualified for flexible hours, and the rule that employees who do not qualify for flexible hours must observe the normal working hours. After the email was circulated, several discussions were also had with the specific employee about his chronic absences and lateness. The court ultimately held that, notwithstanding the employer's lack of enforcement of the rule before June 2010, after the email was circulated there was a valid and reasonable rule in place which the employee was well aware of.

What if we haven't been enforcing our rules?

Business needs and employee-relations evolve constantly. Workplace rules put in place years ago may have not been strictly enforced because the workforce was small and easily managed on a one-to-one basis. But now that the workforce has grown, the employer may want to rely on those rules  to standardise expectations and properly manage the staff.

If this sounds familiar to you, perhaps it is time to take stock of what workplace rules are currently in place and restate those rules that the company will be enforcing in the future. Restate such rules by circulating the written rules to employees and advising that the rules will be enforced strictly as from a specified date. Keeping record of how the restated rules were brought to the attention of staff will assist in any future disputes.

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