While labour legislation encourages employers to adopt disciplinary rules that establish the standard of conduct expected from their employees, these rules must be reasonable, consistent with laws and public policy and not be arbitrary, capricious or unfair.

That said, how do the requirements of reasonability and justifiability apply when employers want to implement a zero-tolerance policy or approach?

This question was addressed in the recent decision of the Labour Appeal Court in SGB Cape Octorex (Pty) Ltd vs Metal and Engineering Industries Bargaining Council and Others.

In this matter, the employee worked as a supervisor at SGB Cape Octorex, a company that supplies equipment such as scaffolding, rope access and thermal insulation.

One of SGB Cape’s managers was informed that the employee was seen smoking cannabis while on duty. The manager confronted him with the allegation. The employee denied that he had been smoking any drugs.

The employee then took a urine and saliva test, both of which showed the presence of tetrahydrocannabinol (THC), the active ingredient in cannabis, in the employee’s system. He was charged with the disciplinary offence of having tested positive for THC, was found guilty, and dismissed.

He challenged the fairness of his dismissal. The arbitrator found the dismissal to be substantively unfair for the following reasons:

• The employee pleaded guilty after the test results;
• He had a clean record during his four years of employment;
• He was a first-time offender;
• The employer did not suffer any prejudice;
• Because of his behaviour, the employee had been promoted to a supervisory position;
• The employee was unlikely to repeat the same offence; and
• The relationship between the parties could be restored.

On review, SGB Cape argued that the arbitrator had ignored the zero-tolerance policy adopted by the employer on the use of drugs in the workplace. The Labour Court found that the zero-tolerance approach contention had no substance because no evidence was presented at the arbitration in this regard.

Read in Daily Maverick: “Interpreting smoke signals — while it may be legal to use cannabis, you could still be fired for testing positive at work”

The court also found that there was no evidence that the employee had compromised the safety and integrity of other workers. Ultimately, the review application was dismissed.

On appeal, the Labour Appeal Court disagreed with the arbitrator and the Labour Court’s findings. It found that:

• The employee only admitted guilt after he was informed that the test results were positive, and therefore had no choice but to do so;
• Regardless of whether the employee had a clean record, a first offence attracted dismissal since the disciplinary policy was clear in this regard;
• There was prejudice to the company since a breach of the policy undermined the authority of the employer. This would be prejudicial to the administration of discipline. SGB Cape was also concerned about the safety of its employees since they were working at heights;
• There was no evidence to show that the good behaviour of the employee was the reason for his promotion to a supervisory position. In any event, the role of a supervisor placed him in a position of trust and thus militated against a lenient sanction;
• There was no evidence to support the view that the employee would not commit the same offence in future; and
• There was no evidence to show that the broken relationship could be restored.

The Labour Appeal Court set aside the award and found the dismissal to be fair.

Comment

In the earlier decision of Shoprite Checkers (Pty) Ltd vs Tokiso Dispute Settlement and others, the Labour Appeal Court adopted a strict approach to the adoption of zero-tolerance policies and held that such a policy had to be justified. It stated:

“It is also necessary to make some further remarks as regards dismissal for a first offence ie 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. 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…”

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At first sight, the SGB Cape case appears to adopt a less-strict approach to zero-tolerance policies. The Labour Appeal Court stated, for example, that an employer is entitled to set its own standards to enforce discipline in its workplace and that the Labour Court had failed to appreciate the importance of the zero-tolerance policy. In addition, there was no in-depth interrogation of whether this policy could be justified. 

Nevertheless, this decision should be viewed with caution. The Labour Appeal Court accepted that the dismissal was fair “taking into account the nature of its business and similar sanctions which have been imposed on other offending employees”.

The Labour Appeal Court may not have interrogated the point in detail, but it did seem to accept that the nature of the employer’s business justified the dismissal in light of the contravention of the policy.

Accordingly, employers who wish to adopt and implement zero-tolerance policies should still consider on what basis such a policy may be justified. DM