Zero tolerance rigid: Policy application unfair

3 Comments

1. 

   GilesFiles on July 30, 2015 at 11:38 am

   Comment by PAK le Roux in (2015) 24:12 Contemporary Labour Law 119 at 121 [subscription required]

   This decision is not authority for the view that an employer cannot adopt a zero tolerance policy in the correct circumstances. It is, however, authority for the view that such an approach must be capable of justification in arbitration proceedings. Evidence must be led on this issue. This is especially the case where the employer seeks to justify the dismissal of employees for the contravention of a ‘lesser’ or subordinate’ rule introduced to bolster a policy aimed at more serious offences.

2. 

   GilesFiles on August 6, 2015 at 9:36 am

   Reported with headnote
   [2015] 9 BLLR 887 (LAC)
   Dismissal – “Zero tolerance” policy – Employers not permitted to rely inflexibly on zero tolerance approach to certain offences, and to dismiss employee regardless of circumstances – Dismissal of employee for failing to declare goods before leaving store unfair.

3. 

   GilesFiles on February 3, 2016 at 11:47 am

   Zero tolerance: No “no-go zone” for commissioners Employment Law (2015) December published by LexisNexis [subscription required]

   Employers frequently seek to justify dismissing employees for what may seem like minor infractions because they claim an entitlement to adopt a “zero tolerance” approach. One commissioner was impressed by this claim, but the Labour Court and the Labour Appeal Court were not. John Grogan looks at the LAC’s judgment.

   In this case, Shoprite Checkers failed to persuade the LAC that there was an operational need so pressing that, in spite of her remorse, Mzolo should be sacrificed for an offence that was in itself fairly innocuous. But the court reached the conclusion that her dismissal would have been unfair without dismantling the notion of zero tolerance completely. For one, the court recognised that this particular policy might have been fairly applied had Mzolo walked out of the store with undeclared expensive jewellery, even if she had protested that it was her personal property. But even then, it seems, Shoprite Checkers would still have been required to prove, at the very least, that Mzolo culpably breached the rule.

   But Shoprite Checkers does not mean that employers are no longer entitled to adopt a zero tolerance approach to some offences. Actual theft is one. Sexual harassment (Gaga v Anglo Platinum Ltd & others [2012] 3 BLLR 285 (LAC)); racist conduct (Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others [2002] 6 BLLR 493 (LAC)); being under the influence of alcohol at work (National Union of Metalworkers of SA on behalf of Johnson and Trident Steel, supra); assault (Trident SA (Pty) Ltd v MEIBC & others, supra); and even negligence (Afrox Healthcare Ltd v CCMA & others, supra) are just some others. However, the Shoprite Checkers judgment sounds a warning that there may be other cases in which, like that of Mzolo, commissioners and judges will look beyond claims of zero tolerance to find justice. It came far too late for that approach to help Mr Shoko.