The fairness of a zero tolerance policy

In Shoprite Checkers (PTY) Ltd v Tokiso Dispute Settlement and Others the fairness of a zero tolerance policy came in question after the commissioner declared that the dismissal was appropriate and substantively fair.

Shoprite has a policy which requires all employees to declare (or “cancel”) all personal belongings upon entering and exiting the store.  This policy assists them to counter theft by staff members.  Failure by employees to declare such goods, constitutes a disciplinary offence.

On the 10th of November 2009, an employee of Shoprite (third Respondent in this case) was found in possession of undeclared goods, namely “Shield for Men” roll-on deodorant, in her handbag upon her exit of the store.  On that specific day the employee did not declare the said roll-on deodorant. The employee claimed that she completely forgot to declare the roll-on.  She testified that she had a doctor’s appointment that morning and that her doctor requested her to not apply roll-on before going to the consultation.  She thus kept the roll-on in her handbag to apply after the said consultation.  The employee admitted that she was aware of the store’s policy regarding the declaration of personal belongings upon entering the store.  At the disciplinary hearing Shoprite dismissed her, as it is their policy that any property that is not declared is considered uncancelled / undeclared goods and the penalty for being found in possession of such goods was dismissal.  Their policy further entails that should uncancelled goods be found in an employee’s possession, proof of purchase must be provided.  If proof of purchase can be provided, the sanction would only be a written warning.  The employee was unable to provide proof of purchase of the roll-on.

The employee then referred the dismissal to the CCMA where the matter was enrolled for arbitration.  The commissioner only had to adjudicate the issue of whether the sanction was appropriate in the circumstances in light of the fact that the employee already pleaded guilty to being in possession of uncancelled goods.  The employee claimed that she was under the impression that she will only be receiving a final written warning due to the fact that she was a first offender.  The commissioner found that the sanction of dismissal was indeed appropriate and therefore substantively fair.  The commissioner did not accept the employee’s version that she “forgot” to declare the roll-on.  The commissioner was satisfied that the employee acted consistently with employees who were found guilty.

The employee applied to the Labour Appeal Court after the decision of the commissioner.  The Labour Court Held that the dismissal was not a fair sanction in the circumstances and set the award aside.  The Labour Court held that there is no evidence that this policy is known to the employees. Secondly, the policy states that it may lead to a disciplinary sanction including dismissal. The Labour Court held that although the policy was a measure to counter theft, it did not create the offence of theft.  The Labour Court further held that the dismissal was unfair in this circumstance and a fair sanction would have been a written warning or a final written warning.

As a result of the decision of the Labour Appeal Court it is important to note that although an employer has a zero tolerance policy in place, it will not prevent a commissioner from making a ruling that the dismissal can be an inappropriate sanction taking all circumstances in account.  The Labour Appeal Court held that it is also important to consider the value of goods, for example such a policy would be fair if the stock is gold, but would not necessarily be fair if an employer of the same employee remove a crust of bread otherwise designed for the refuse bin.  If employers implement such a policy it is required of them to take cognisance of all surrounding circumstances and they need to be able to justify such policy.

By Alicia Oberholzer

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