Zero tolerance in the work place: How high may the employer set the bar?

You are an employee in a workplace. Your employer introduces a zero tolerance policy which you were not aware of. You breach the new policy which inevitably calls for your dismissal. Is this considered as fair? It is of course a zero tolerance policy which implies, in its name alone, that your conduct was not tolerated. However, you were not aware of this policy, and furthermore, this was a first time offence. So I ask once more, is this fair?

The question is then raised- does the breach of a zero tolerance policy always call for dismissal?

This brings us to the case of SHOPRITE CHECKERS (PTY) LTD V TOKISO DISPUTE SETTLEMENT & OTHERS where a zero tolerance policy and the implications thereof were discussed in detail.

Background

Shoprite introduced a new policy in order to counter shrinkage of their stock and subsequently lessen the financial implications thereof. In terms of this policy, the employees of the store had to “declare” items in their possession at the security office. One of the employees. Ntombenhle Mzolo, a supervisor at the store, was found with a “Shield for men” roll-on deodorant in her bag that she had not declared as an item in her possession. Upon discovering the undeclared item, Mzolo stated that she had forgotten to declare the item as she had firm instructions from her doctor not to use deodorant therefore it was not common for her to use it and she had simply forgot that it was in her bag. Shoprite then afforded her the opportunity to produce a receipt for the item- of which she was unable to do. She was subsequently charged with failure to declare the item – a charge that she pleaded guilty to, and which called for her dismissal. It must be noted that she only pleaded guilty as she was under the impression that she would receive a warning as opposed to being dismissed.

An interesting fact about this case was that the charge was not one of theft but rather failure to declare- a seemingly lesser charge.

 

CCMA

Mzolo then referred the matter to the CCMA which was enrolled for arbitration. The dismissal was upheld as the Commissioner was satisfied that Shoprite was consistent in dismissing employees who breached this zero tolerance policy and stated that, as a supervisor, Mzolo should have been aware of this rule.

Labour Court

On review the Commissioner of the CCMA was put under the spotlight. The Court a quo found many faults with the way in which the Commissioner had conducted itself and even stated that the Commissioner had misdirected itself in terms of the evidence on record and due to the fact that the Commissioner had not assisted Mzolo when it became necessary to do so.

The Labour Court held that the Commissioner should have found a written warning or a final written warning to be a fair sanction as opposed to the dismissal which was held to be unfair and subsequently set aside.

Labour Appeal Court

Shoprite was not happy with the decision of the Labour Court and subsequently appealed against the whole judgment- to their dismay.

The Commissioner of the CCMA was again criticised for its actions as the Appeal Court found that it is the duty of a Commissioner to consider whether the circumstances warrant dismissal and if not then set it aside and replace it with an appropriate sanction, which in this case, would have been a final written warning.

The Labour Appeal Court addressed the distinction between a charge of theft and of failure to declare and further stated that it was important not to blur the distinction between the aforementioned charges.

The Appeal Court ultimately found that the dismissal was not procedurally and substantively fair and gave the following reasons:

  1. the was no evidence that this zero tolerance approach which called for dismissal was known to the employees;
  2. it was contrary to the Appellant’s code of conduct due to the fact that dismissal was not the only remedy, provided that the employee produced a receipt for the undeclared item;
  3. the fact that she pleaded guilty was a mitigating circumstance; and
  4. the fact that she breached the policy only once and was dismissed was found to be unfair.

The Labour Appeal Court’s decision was in line with the court a quo and the appeal was subsequently dismissed.

Conclusion

We now know the answer to the question I asked above – dismissal resulting from breaching a zero tolerance policy is not always considered as fair. A dismissal will therefore depend on the circumstances of each case- taking into consideration whether the employee was aware of the policy and how many times the employee had breached the policy. So, if you are an employer, it is important to ensure that the rules you implement are communicated to your employees, and, if you are an employee, it is important to ensure that you are aware of all the rules of the workplace.

By Lauren Padayachee
lauren@dyason.co.za

The transposition of a breach in public law duty to private law liability: A new form of delict?

Every now and then there comes a case in our law which changes the direction of future cases. The case of Mashongwa v Passenger Rail Agency of South Africa (PRASA) [2016] JOL 34753 (CC) was exactly that.

The jest of this case is as follows: Can a transport utility be held delictually liable for damages arising from a breach of its public law duties, which includes providing safety and security to its commuters? In other words, the Constitution makes provision for the right to be free from any form of violence and harm, whether in the public or private source of events and the State is levied with the responsibility to express that right. So can the failure of the State to express the aforesaid give rise to a delictual claim for damages?

The significance hereof is the following: A delict is a wrongful act or omission causing another person harm. The law of delict is in itself a private law remedy as it is implemented to protect the interests of individuals or their private interests, whereas the public law is focussed on protecting and upholding the interests of society as a whole, which includes the implementation of the Constitution.

The Applicant in this case, Mr. Mashongwa, was a commuter on one of Prasa’s trains during the festive season of 2011. Naturally the coach was quiet as not a lot of people was travelling on that New Year’s Day. Passengers could easily move from one coach to another without much hindrance due to the fact that there was not enough security officers patrolling the train.

A few minutes into the journey to the next train station, three unarmed men approached Mr. Mashongwa and demanded his valuables. He did not resist and handed everything he had over to the attackers. Subsequent thereto and notwithstanding the fact that he did not resist, the robbers assaulted him whereafter they threw him out of the train and was left critically injured with severe injuries to his left leg. The injuries to his leg eventually caused his leg to be amputated.

The Applicant instituted legal proceedings against Prasa on the grounds that they failed to adopt reasonable measures to ensure his and other passengers’ safety. He also alleged that they failed to respect, promote and protect his Constitutional right to be free from all forms of violence.

The Court a quo, the High Court in Pretoria, found that Prasa had been negligent insofar that it did not ensure the safety of its passengers by deploying at least one security officer on the train as well as not closing the train’s doors. The Court found that criminal activities rise during a festive season and as such Prasa should have deployed more security officers in order to deter potential criminals.

Prasa appealed the Court a quo’s judgment to the Supreme Court of Appeal where the court found that the Court a quo erred in its reasoning of the judgment and also disposed of both grounds of negligence. The SCA said that it was unreasonable to expect Prasa to deploy security officers on every coach and that the reasoning behind the fact that the doors should have been closed is not sufficient. The Court said further that the attackers could have easily opened the doors and threw the Applicant out of the train and as such the measures which the Applicant alleges Prasa should have implemented exceeds the reasonable precautionary measures of its duty towards its passengers.

The matter was subsequently escalated to the Constitutional Court but from the offset the Court had a jurisdictional issue. The Court held that although at face value it did not have jurisdiction, section 7(2) and 12 (1) (c) of the Constitution was the pillars on which this case rested.

The Court held that the Respondent has always had a public law obligation towards its commuters to provide a safe environment on its trains whilst travelling. These obligations would normally be included in a contractual relationship between a commuter and Prasa, but these obligations arose from its public law duty in this case.

The Court admitted that to conclude that the failure to do something relating to public law duties, is wrongful and therefore impute a delictual liability, was an “exacting exercise” which needed to be investigated through a number of factors. The Court went on to consider the appropriateness of transposing a breach of constitutional duty into a breach of private law duty. It held that one can only, in exceptional circumstances, impose this transposition if there are no other non-judicial remedies available.

The Court envisaged the fact that State Organs existed to give effect to the public’s constitutional rights and as such State Organs cannot be allowed to adopt a “lackadaisical attitude” at the expense of the public without consequences and for that reason, there should be exceptions to the general rule that a breach in public law obligations does not necessarily give rise to a delictual claim in damages.

The Court held that the Respondent had a duty to ensure that its passengers was safe whilst making use of its trains and protecting each person’s bodily integrity.

It is important to note that the grounds on which the Court found the Respondent to be negligent was not about the exact way in which the Applicant incurred the injuries but rather the fact that reasonable measures could have been implemented to deny the attackers the opportunity to be able to throw the Applicant out of the train. Thus if the doors had been closed, as could reasonably be expected from the Respondent, it might have deterred the attackers from throwing the Applicant out of the moving train.

The unanimous decision of the Constitutional Court was that the Respondent was liable for all the proven damages of the Applicant as well as the costs of the matters in the High Court, Supreme Court and Constitutional Court, which includes the costs of both the Applicant’s counsel.

The judgment in this matter is a rare but explicit warning to State entities to ensure that they comply with their public law duties and uphold the interest of society as they are designed to do.

By Werner Cilliers
werner@dyason.co.za