Cough syrup today, unemployed tomorrow: When zero-tolerance policies end in unfair dismissals

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The Labour Court in

Chill Beverages International (Pty) Ltd v CCMA and Others

Background

Mr Tsamse was employed by Chill Beverages International (employer), a manufacturer and distributor of beverages, as a forklift driver. His duties involved transporting raw materials, including heavy bags of sugar and containers of up to 1000L of liquid ingredients.

He was dismissed for gross misconduct, after having failed a breathalyser test, in contravention of the employer’s alcohol, drug and substance abuse policy. This policy prohibits employees from having any intoxicating substances in their bloodstream during working hours and forbids them from using alcohol during work or within six hours before the start of their shift. The policy also includes a zero-tolerance clause regarding alcohol in the bloodstream. All employees are subjected to a breathalyser test when entering or exiting the factory.

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Tsamse tested positive for alcohol after arriving an hour late for work. He was required to undergo several tests using different devices to ensure that the initial device was not faulty. He was also afforded an opportunity to eat and drink before being re-tested; however, the test results remained positive.

Tsamse’s reason for failing the breathalyser test was that he took medicine the evening before, and on the morning of, his shift. He confirmed that he had not consumed any alcohol and stated that he was not aware that the cough mixture contained alcohol and did not read the label. Notwithstanding Tsamse’s submissions in this regard, he was dismissed.

CCMA proceedings

Tsamse approached the Commission for Conciliation, Mediation and Arbitration (CCMA) alleging that his dismissal was substantively unfair. While he did not dispute that he was aware of the Policy and that there was alcohol in his blood, which resulted in him failing the breathalyser tests, he maintained that he unknowingly contravened the policy and that dismissal was not an appropriate sanction.

In line with the employer’s policy, which required that each case be assessed on its own merit, the Commissioner took into consideration the nature of the employee’s role, the risk to the work environment, and the employee’s service record.

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The Commissioner found that there was no evidence to suggest that Tsamse consumed alcohol before or on the morning of his shift, nor did he show any signs of intoxication. There was no evidence to dispute Tsamse’s version that he had consumed a cough mixture that contained alcohol.

Moreover, the Commissioner found Tsamse to be a credible witness, and as acknowledged by the Court in Samancor Chrome Ltd (Western Chrome Mines) v Willemse and Others, he was alive to the fact that numerous factors could lead to a positive breathalyser test result. Considering this, together with Tsamse’s clean disciplinary record over his six years’ service and that there was no history of alcohol misuse, the Commissioner found Tsamse’s dismissal to be substantively unfair.

Labour Court proceedings

The employer approached the Labour Court to review and set aside the arbitration award. It challenged the Commissioner’s conclusion that the independent evidence suggested that Tsamse was not intoxicated or did not breach the policy. It also argued that the Commissioner failed to appreciate that the nature of the work was high risk.

The Labour Court found that all the material facts were common cause, including the fact that Tsamse showed no signs of intoxication and thus did not work whilst intoxicated.

The Court considered relevant case law on the matter where it was held, among other things, that a zero-tolerance policy will be fair where the circumstances necessitate its implementation by the employer. Moreover, the courts have found that the employer has a duty to show that a dismissal is appropriate and proportionate to the offence committed.

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The Labour Court confirmed that the Commissioner was aware that, despite a zero-tolerance rule, the sanction of dismissal must be appropriate. Based on the evidence presented before the Commissioner, including the explanation provided by Tsamse and his impeccable record, his award was found to be reasonable and fair. The review application was dismissed.

Key takeaways

In line with previous case law, this case confirms that while zero-tolerance policies may be necessary in certain circumstances to ensure compliance with an employer’s workplace health and safety obligations, this does not negate the obligation to ensure that whatever sanction is levelled against an employee for breaching a policy is appropriate and proportional. The fact that an employer’s policy provides for zero-tolerance does not mean that conduct that may be in breach of the said policy should automatically result in dismissal.

It is important for employers to interrogate the circumstances surrounding the breach of a zero-tolerance policy, being mindful of, among others, the nature and responsibilities of the employee’s role, the inherent risks or potential harm to the workplace, and the employee’s record of service, to avoid a ‘one size fits all’ approach to discipline. Employers should be open to taking a flexible approach and to dealing with each case on its merits.