Often times, employers find themselves having to deal with the tedious graduated disciplinary measures against employees that have transgressed the set disciplinary code in the workplace and the process can be found to be frustrating, driving the employers into adopting so-called ‘zero-tolerance policies’ in the workplace to expedite dealing with such transgressions.
In terms of item 3(1) of Schedule 8 – Code of Good Practice: Dismissal of Labour Relations Act 66 of 1995 on ‘disciplinary procedures prior to dismissal’ it is essentially stated that ‘all employers should adopt disciplinary rules that establish the standard of conduct required of their employees…An employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct are clear and made available to the employees in a manner that is easily understood’.
Under certain circumstances it will be appropriate and justifiable to adopt a ‘zero-tolerance policy’ informing the employees of what the dangers of their deviatory conduct maybe, to warn that such is intolerable and inform what disciplinary action the employer will take should the employees make themselves guilty of same.
In KWS Carries v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1261/16) [2019] ZALCJHB 295 (17 October 2019) the Applicant, a logistics company, had adopted a ‘zero-tolerance policy’ pertaining to alcohol especially since most of their clients were mines and they also have ‘zero-tolerance policies’ and a certain Mr Dommy Mokwena, being a heavy load truck driver at the Applicant, was dismissed for reporting for work while under the influence of intoxicating liquor after randomly being tested by the Mine twice, with first reading being 0.07mg per 1000ml while the second one was 0.08mg per 1000ml at the Applicant’s client, Idwala Mines. The tests were conducted an hour and 45 minutes apart.
Judge P Nkutha-Nkontwana stated, “given the carnage on our roads caused by reckless driving, mainly attributed to driving under the influence of alcohol, a deviation from the Zero Tolerance Policy is serious enough to warrant dismissal”. It was a common cause that Mr Mokwena had been inducted on the importance of the safety rules and there were constant follow up sessions to remind the drivers of those rules. The dismissal of Mr Mokwena was found to be substantively fair.
In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others (JA49/14) [2015] ZALAC 23; [2015] 9 BLLR 887 (LAC) ; (2015) 36 ILJ 2273 (LAC) (24 June 2015) the Appellant had a ‘zero-tolerance policy’ requiring all employees to declare any personal products in their possession upon entering the store, failure which would result in a dismissal should the employee not be able to produce proof of purchase.
Landman JA held that employers will not be able to adopt a ‘zero-tolerance policy’ for just about any transgression. Consideration should be had to the appropriateness of the policy to the offence. Prior to adopting any such policy, an employer must first evaluate whether or not a sanction of dismissal would be appropriate in the circumstances. The dismissal must be commensurate the offence, considering the circumstances of each factual scenario. The judge further found “even assuming that the appellant was pursuing a zero-tolerance policy, it was not one that is appropriate for an infringement of this rule without further evidence from appellant for the justification of such an inflexible policy” The dismissal was held to be unfair in this matter.
It can be concluded, therefore, that the adoption of a ‘zero-tolerance policy’ is not necessarily a “license to kill” in every situation but needs thorough consideration of justifiable purpose and appropriateness, considering the surrounding circumstances of each case.
ABOUT THE AUTHOR
Sekhobe Abe Mopedi: Senior Legal Advisor: SEESA Labour, Bloemfontein.
LLB (UFS) 2007. Employed at SEESA (Pty) Ltd for the past 8 years.