In the recent decision of Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others, the Labour Appeal Court (“LAC”) considered the reasonableness of a dismissal of an employee based on an employer's zero tolerance policy .
Many companies have adopted a zero tolerance policy to various acts of employee misconduct.For example, some companies have a zero tolerance towards the use of alcohol during office hours and employees and suppliers are barred from the premises if they fail a breathalyzer test.
Once these employers adopt a zero tolerance policy to a specific act of misconduct, any employee who is found guilty of the misconduct is dismissed, even if it is a first offence.
The LAC’s decision has confirmed that the mere implementation of a zero tolerance policy will not on its own be sufficient grounds for dismissal once it is proven that the employee has breached the policy. The decision to implement a zero tolerance policy must be supported by evidence to prove that its implementation is capable of justification. To do this, employers will have to lead evidence as to why the rule is operationally necessary to their business. Examples of the extent of the abuse of the rule and the potential consequences will also be relevant evidence that will have to be introduced at any arbitration to justify the policy.
The implementation of a zero tolerance towards alcohol, for example, may be implemented provided there is evidence to suggest:
- A previous abuse of alcohol by employees;
- The potential consequences of a person in the workplace who is not in control of his faculties as a result of alcohol consumption; and
- Evidence of fast moving machinery or other dangerous equipment in the area in which the employee works.
Employers who do not show why the zero tolerance rule is circumstantially justifiable will run the risk of the court finding the misconduct not serious enough to warrant a dismissal.This risk will be particularly likely in cases where an employee was disciplined for a first offence.
Employers are urged to consider the facts of every case and to be satisfied that the sanction of dismissal is appropriate given the seriousness of the offence. Commissioners in the The Commission for Conciliation, Mediation and Arbitration (CCMA) have been warned by the courts to ensure that the constitutional right to fair labour practices is upheld and that the obligation by employers to prove a fair reason for the dismissal is afforded to all employees.