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24 Nov 2021
BY Jayson Kent AND Bonolo Mafa

Zero Tolerance Disciplinary Offences

The application of zero tolerance policies has become something that employers, particularly in work environments that require the utmost safety compliance, use to ensure that safety standards are adhered to. In its recent decision in Air Products South Africa (Pty) Ltd v Matee and others the Labour Court had to answer the question whether an employee’s failure to adhere to an employer’s zero tolerance policy rendered the employee’s dismissal substantively fair.

the facts

In this case, the employer, Air Products South Africa, sought to review and set aside an arbitration award in which the commissioner had found the dismissal of the employee substantively unfair. Air Products is in the business of manufacturing and distributing substances including, oxygen, nitrogen, hydrogen and carbon dioxide. These gasses are manufactured and stored in highly pressurised storage units at Air Products facilities. Due to the highly hazardous environment for the employees, contractors and the surrounding community, Air Products adopts strict protocols, policies and procedures including a zero tolerance approach to alcohol. In terms of the policy, employees can take a voluntary breathalyser test if they believe that they could be under the influence of alcohol. Should a test be positive, the employee can elect to return home, in which case the employee will be charged with absenteeism. In circumstances where the employee elects not to take the voluntary test, and enters the employer’s premises, the employee could be subjected to a test by a security guard. If an employee tests positive, the employee will be required to take a second test 20 minutes after the first test. Should the second test also return positive, the employee will be sent to a medical facility where a blood sample will be drawn for testing. If the blood test shows that the employee has alcohol in his blood the employee could be subjected to a disciplinary hearing.

The employee in this matter agreed to take a breathalyser test when he reported for work at the Air Products’ facility gate at 6:50am. The result indicated that there was alcohol in his bloodstream. This was confirmed by a second test conducted approximately 20 minutes later. He then signed a consent form to have a health practitioner conduct a blood test at a laboratory, the results of which indicated that the employee, had a blood alcohol level of 0.03g/dl. The employee was suspended and a disciplinary hearing was convened. He pleaded guilty to the charges levelled against him and was dismissed. Aggrieved by his dismissal the employee referred a dispute to the relevant bargaining council to challenge the substantive fairness of his dismissal.

was the dismissal fair?

At the arbitration the employee stated that the positive test for alcohol was due to the fact that he had consumed alcohol the previous day and that the sanction of dismissal was too harsh. Air Products justified the dismissal with reference to its zero tolerance policy. The arbitrator found the dismissal to be unfair on the basis that Air Products had not shown that the employee’s use of alcohol had resulted in the impairment of the employee’s faculties to such an extent that he could not perform his duties.

Labour Court’s findings

Air Products applied to the Labour Court to have the award reviewed and set aside. It argued that the award was reviewable on the basis that the arbitrator had misconstrued the nature of the enquiry he was supposed undertake. The question the arbitrator was called upon to assess was whether Air Products’ circumstances necessitated the adoption of a zero-tolerance policy and whether the dismissal was appropriate and proportional to the offence; not whether the employee’s ability to work had been impaired.

The Court accepted Air Product’s arguments and set aside the award. Typically, if the Court sets an award aside, it will refer the matter back to the CCMA or the relevant bargaining council so that the arbitration can be conducted again. However, in this case the Court was prepared to consider the merits of the case itself. It upheld the validity of the zero tolerance policy. It found that the zero-tolerance policy was justifiable in the light of Air Products operational requirements and obligatory in terms of the Employment Equity Act as well as the Occupational Health and Safety Act. The employee did not lead evidence to contradict Air Products’ evidence that its workplace was dangerous and that the rule was justifiable. The policy was reasonable when the employee’s roles and responsibilities were taken into account and considering that the employee was working on a dangerous site.

The Labour Court also referred to its decisions in Superstone Mining (Pty) Ltd v CCMA & others, and Assmang Ltd v CCMA & 2 others where the court accepted that health and safety considerations could justify a zero tolerance policy.

zero tolerance policies should be reasonable

From the above it is evident that employers may be able to justify the implementation of zero tolerance policies, provided that the policy is reasonable and justifiable in its application to the circumstances of the employer’s operations. The employer will also have to prove that the dismissal was appropriate and proportional to the offence.

The justification for such a policy will usually be the employer’s operational requirements. It is also evident from the decision in Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and others, to which the Court referred to with approval, that the Labour Court will scrutinise such a policy to see that it is justified. This is evident from the following excerpt from the decision –

“[17]     It is also necessary to make some further remarks as regards dismissal for a first offence i.e. a “zero tolerance” policy. A dismissal will only be fair if it is procedurally and substantively fair. A commissioner of the CCMA or other arbitrator is the initial and primary judge of whether a decision is fair. As the code of good practice enjoins, commissioners will accept a zero tolerance if the circumstances of the case warrant the employer adopting such an approach.

[18]      But 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.

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”.

 

Reviewed by Peter le Roux | Employment | Executive Consultant

Jayson Kent

Employment | Senior Associate

jkent@ENSafrica.com

+27 76 731 8900

 

Bonolo Mafa

Employment | Associate

bmafa@ENSafrica.com

+27 62 868 3734