It is not unusual for employer’s to designate so-called ‘zero tolerance’ policies for certain acts of misconduct. For example, an employer will often adopt a ‘zero tolerance’ policy towards theft related cases and alcohol related offences.

The upshot of this is that any employee found guilty of an act of misconduct which falls within a zero tolerance policy framework, will invariably result in the dismissal of the employee, regardless of the fact that the employee may, for example, have an otherwise clean disciplinary record.

At face value, these zero tolerance tendencies are quite understandable in certain circumstances. The question is however, whether dispute resolution bodies, such as the CCMA, will recognize such zero tolerance regimes regarding certain offences.

Case law directs us on this vexed question, and the answer is not as straight forward as many employers would believe.

Our Courts have had much to say about “a slavish imposition of the dismissal penalty” in the event of a breach of a company zero tolerance policy [Labour Court: Pick ‘n Pay Retailers (Pty) Ltd v CCMA & others – C1083-14].

It was further held in this case that “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”.

In another retailer case before the Labour Appeal Court, that of [Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement – JA49-14], it was held 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. 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.”

That’s not to say that zero-tolerance policies cannot be upheld in certain circumstances.  Safety is of critical importance in many workplaces, such as a mining environment.  In the Labour Court judgment in Superstone Mining (Pty) Ltd v CCMA & 2 others [Case no. C959/11), it was held that “given the employer’s zero tolerance policy with regard to alcohol-related misconduct of which the employee was aware, dismissal was clearly a fair sanction”.

In Assmang Ltd v CCMA & 2 others [JR911/13], the Labour Court once more upheld the notion of zero-tolerance policies relating to alcohol and safety in finding that “Being a mine, however, the Applicant is bound by the provisions of the Mine Health and Safety Act, which prohibits an employee from entering the mine premises whilst under the influence of alcohol …. the Second Respondent ought to have taken into account, the importance of the safety rule concerned, the reasons for their existence, and the seriousness and potentially life threatening consequences of a breach of such rule”.

In the final analysis, employers should be cautious in implementing zero tolerance policies; dispute resolution bodies such as the CCMA, Bargaining Councils and the Labour Courts, may frown upon such a policy. To a large degree, this criticism relates to such zero tolerance policies ignoring progressive discipline options such as final written warnings.  Foreign jurisprudence has dealt with this issue, on occasion, by noting that a zero-tolerance policy in dismissal cases may not necessarily be upheld if the employer’s disciplinary code provides for discretion in the imposing of a dismissal sanction when misconduct is committed in respect of which there is ‘zero tolerance’.  For example, does the disciplinary code state that the misconduct will lead to dismissal, or ‘may’ lead to dismissal?

In the final analysis, reasonable and justifiable zero-tolerance policies will be upheld in regard certain acts of misconduct, and each case will be examined on it’s own merits

Another bugbear of our Courts is frequent inconsistency in the application of such policies.

Employers may indeed emphasize the gravity of certain acts of gross misconduct in disciplinary codes, but be open to the fact that there will be, in exceptional circumstances, circumstances in which dismissal will deemed to be too harsh a sanction.