Zero Tolerance Policies – Tipping the Scale

Who of you read your Contract of Employment or made an effort to read the employer’s Policies and Procedures before signing? If you did, you might have come across the phrase ‘zero-tolerance’.  This principle is adopted in many contracts and policies and mostly in conjunction with conduct relating to the use of alcohol, or other substance abuse, theft or even late coming.

The default position, when the ‘zero-tolerance’ prefix is attached to a specific conduct, is to blindly accept and not to question. The courts, rightly so, do not take an armrest approach when ‘zero-tolerance’ is the sole reason for dismissal. After all, the Labour Relations Act 66 of 1995 (LRA), does require fairness and progressive discipline prior the termination of an employment relationship.

Zero-Tolerance

The Labour Appeal Court, Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others (JA 49/14) [2015] ZALAC 23 (Shoprite Matter), confirmed that:

‘adopting a zero tolerance policy does not preclude a commissioner from making a ruling that a dismissal was not an appropriate sanction in the circumstances and to replace it with an appropriate one. A dismissal must be substantively and procedurally fair. An employer cannot contract out of the law dictating fairness of dismissals.’ (Own Emphasis)

The above set a precedent namely that reliance on a ‘zero-tolerance policy’ cannot be a stand-alone approach, fairness and objectivity must enter the playing field. This was applied in SATAWU obo Mmotong / Staffing Logistics [2018] 1 BALR 26 (National Bargaining Council for the Road Freight and Logistics Industry). The arbitrator had to decide on the fairness of a dismissal in terms of an alleged ‘zero-tolerance policy against alcohol consumption’. The employee, who had to handle fragile goods as part of his employment, was dismissed after a breathalyser test showed that he had consumed alcohol, a reading of 0.05%. The employee, charged with ‘reporting for work under the influence of alcohol’, was dismissed as a result. Knowledge of the alleged ‘zero-tolerance’ policy was denied and the existence thereof disputed by the employee and the employer never submitted the alleged policy into evidence. The infringement itself was however described in the Disciplinary Code and held to be wide enough to incorporate the alleged ‘zero-tolerance’ approach.

Having regard for the Labour Appeal Court’s guidance in, Tanker Services (Pty) Ltd v Magudulela [1997] 12 BLLR 1552 (LAC), the arbitrator reinstated the employee. Not because the ‘zero-tolerance’ policy was never provided to the arbitrator, but because the LAC emphasised that in matters such as mentioned above, part of the investigation should be whether the capabilities of the employee have been impaired to such an extent that he could no longer properly perform his duties and tasks. The arbitrator, on the evidence, found that the employee was not performing the duties of a driver at the time of the incident which led to his dismissal and that he was one of a crew who were all part of transporting fragile items. No evidence was lead to show impairment of the employee’s capabilities. The employee was reinstated, not because the alleged ‘zero-tolerance’ policy was null and void, but because of fairness in the circumstances.

Tipping the Scale

As mentioned earlier, the benchmark for dismissal is fairness! The LAC in the Shoprite Matter continued to caution that ‘…the law does not allow an employer to adopt a zero-tolerance approach for all infractions, regardless of its appropriateness or proportionality to the offence, and then expect a commissioner to fall in line with such an approach. The touchstone of the law of dismissal is fairness and an employer cannot contract out of it or fashion, as if it were, a “no go area” for commissioners.’ (Own Emphasis)

The LAC did not declare zero tolerance policies null and void but held that ‘…a zero-tolerance policy would be appropriate where, for example, the stock is gold, but it would not necessarily be appropriate where an employee of the same employer removes a crust of bread otherwise designed for the refuse bin.’ The LAC’s finding does not absolve you from your duty of good faith, responsibilities and accountabilities

Theft is theft! Being under the influence of a substance during working hours is exactly what it means. Indolence is indolence! Poor time keeping is poor time keeping. It is in a sense understandable for an employer to reach a point where a zero tolerance policy is introduced, but the zero tolerance policy does not replace the processes to determine appropriateness, proportionality or fairness. Ask yourself the following questions:

• Is there a rule?
• Is the rule reasonable?
• How important is this rule?
• What is my role and my responsibility in terms of this rule?
• Was I aware of- and do I understand the rule?
• Did I breach the rule?
• Is dismissal the appropriate sanction or outcome?

You have a responsibility and accountability in terms of your duty of good faith. Don’t push the boundaries! Not all ‘zero –tolerance’ policies or dismissals in terms thereof will be overturned.

Conclusion

Familiarise yourself with the Employer’s Policies and Procedures and ensure you understand the rules of the workplace, as well as the consequences. Even though it is good practice for an employer to explain the ‘zero tolerance’ policy in detail to you, nothing stops you from asking questions to ensure that you know and understand the policy. It is further of cardinal importance to align the nature and rationale of the policy with your duties and responsibilities as an employee. Execute your duties and responsibilities with utmost care. Breaching the so called ‘zero–tolerance’ policy might not always take you from “hero to zero” or result in your dismissal, it all depends on the reasonableness and fairness of the policy itself on the one hand, balanced with the seriousness of the misconduct on the other.

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