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