Many employers create policies that regulate the conduct of their employees. These policies will vary from workplace to workplace. Very often these policies are strictly enforced and carry harsh sanctions when transgressed, with dismissal being a possible sanction ¬even for a first-time transgression.

In Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others (JA49/14)[2015]ZALAC 23, the Labour Appeal Court had to decide the appropriateness of a sanction, in a case where an employee was dismissed for transgressing such a policy of the employer.
In this case the facts are briefly as follows: The Applicant had a policy in the workplace which required all staff to declare any personal items in their possession when reporting for duty. Once declared the items become “cancelled items”. Should a staff member leave the premises with an uncancelled item, they would be subject to disciplinary action and could be dismissed. Ms Mzolo was employed by the applicant as a supervisor for a period of approximately seven years. On 10 November 2009 when she left the store, she was found in possession of uncancelled item – a canister of deodorant in her handbag. At a subsequent disciplinary hearing she pleaded guilty to being in possession of an uncancelled item. She was dismissed by the Applicant.

The matter was referred to the CCMA as an unfair dismissal dispute. The commissioner found that the dismissal of the Applicant was substantively and procedurally fair. Ms Mzolo then applied to the Labour Court to have the award set aside. The Labour Court declared that the sanction of dismissal was not appropriate and set the award aside.
The Labour Appeal Court (LAC) confirmed the position of the Labour court. Although it recognised the necessity of the policy, it nevertheless held that dismissal was not (always) an appropriate sanction. At [17] and [18] it held as follows:

“[17] …..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.”

The LAC reasoned (at 15) that although the policy is created as a measure to counter shrinkage, the offence created is not one of theft. A repeated breach of this rule, however, may be made a dismissible offence, not because a breach of the rule constitutes theft, although it may lend support to a suspicion of theft, but because a repetition goes to show that the offender wilfully refuses to co-operate with this rule in countering shrinkage and is untrustworthy.

We find that many employers, especially in the hospitality and retail sectors incorporate “non-consumption policies”. In terms of this policy, should an employee be found consuming food on the premises they may be dismissed, regardless of the value or quantity of food being consumed. This rule will often apply in cases where food is destined for disposal. At first glance the rule seems appropriate as a measure to counter theft, however, as has been concluded above, a transgression of the policy does not necessarily amount to theft and a pre-determined or non-negotiable sanction of dismissal may not be appropriate. Even if the employee was aware that his or her conduct would result in dismissal.

Many employers are of the opinion that as long as they are consistent when applying a sanction in cases of zero-tolerance policies the dismissal will be fair. It is clear from this decision, however, that although the employer may consider dismissal appropriate, the appropriateness of the sanction remains the discretion of the commissioner. Every employer must consider whether a sanction of dismissal is appropriate under the circumstances.