Zero Tolerance Does Not Automatically Justify Dismissal - What South African Employers Need to Know

Introduction 

A workplace rule may be clear, and an employer may regard a particular form of misconduct as serious. However, does breaching a zero-tolerance policy automatically justify dismissal? 

The answer is no. Although employers are entitled to establish workplace rules, enforce disciplinary standards and take misconduct seriously, dismissal must still be fair and justified in the circumstances of each case. 

In South African labour law, the fairness of a dismissal is not determined solely by the employer’s disciplinary policy. The nature and seriousness of the misconduct, the employee’s disciplinary record, length of service, the circumstances surrounding the incident and the possibility of corrective discipline may all be relevant when determining an appropriate sanction. 

This article examines what employers should consider when imposing disciplinary sanctions, and practical steps to reduce the risk of an unfair dismissal dispute. 

What Is a Zero-Tolerance Policy? 

A zero-tolerance policy communicates an employer’s firm stance against specified forms of misconduct. Such policies are often introduced to protect the employer’s operations, reputation, property, employees or members of the public. 

Depending on the workplace, a zero-tolerance policy may address conduct such as: 

• Theft, fraud or other forms of dishonesty. 

• Harassment, intimidation or workplace violence. 

• Serious breaches of safety procedures. 

• Unauthorised use of company property. 

• Soliciting money or benefits improperly while performing work duties. 

Employers may legitimately regard these forms of misconduct as serious and establish appropriate disciplinary rules to address them. 

However, a policy does not automatically determine the outcome of every disciplinary matter. Even where misconduct has been established, the employer must still consider whether dismissal is an appropriate and fair sanction in the circumstances. 

The distinction is important: a zero-tolerance policy may demonstrate the seriousness with which an employer views misconduct, but it does not remove the obligation to justify dismissal 

What Does South African Labour Law Require? 

Section 188 of the Labour Relations Act 66 of 1995 provides that a dismissal may be unfair if the employer fails to establish a fair reason for dismissal or fails to follow a fair procedure. 

In cases involving alleged misconduct, the employer must therefore consider both substantive fairness and procedural fairness. 

Substantive fairness concerns whether the employer had a fair reason to dismiss the employee and whether dismissal was an appropriate sanction for the established misconduct. 

Procedural fairness concerns whether the employer followed a fair disciplinary process, including allowing the employee to understand and respond to the allegations. 

An employer may have a valid workplace rule and sufficient evidence to establish misconduct, but that does not necessarily mean dismissal is justified. The sanction must be assessed in the context of the applicable law and the relevant circumstances. 

The applicable Code of Good Practice: Dismissal also provides guidance on disciplinary action, the seriousness of misconduct and the circumstances in which dismissal may be appropriate. 

Employers should accordingly avoid treating a disciplinary policy as a substitute for an individual assessment of the employee’s conduct and the appropriate sanction. 

Why a Zero-Tolerance Policy Is Not Enough 

A zero-tolerance policy can help communicate workplace standards. However, such a policy alone does not make dismissal fair. Employers can learn several practical lessons. 

1. The policy must be established by evidence 

An employer relying on a particular disciplinary policy must demonstrate what the policy provides and how it applies to the alleged misconduct. 

A rule stating that misconduct will result in disciplinary action does not necessarily mean that dismissal is the prescribed sanction in every instance. Employers should ensure their policies' wording accurately reflects the consequences they intend to communicate. 

2. Each case must be assessed on its merits 

The seriousness of the misconduct is important, but it is not the only consideration. Relevant circumstances may include the employee’s length of service, disciplinary record, the nature of the offence, any mitigating or aggravating factors and the prospects of correcting the behaviour. 

A sanction that is appropriate in one case may not necessarily be appropriate in another, even where the allegations appear similar. 

3. Dismissal should not be treated as an automatic consequence 

Progressive discipline may be appropriate where misconduct can reasonably be corrected through counselling, a warning or another proportionate disciplinary measure. 

This does not mean that employers must always issue warnings before dismissing an employee. Serious misconduct may justify dismissal, depending on the facts. The important point is that the employer must assess whether dismissal is justified rather than relying solely on the label attached to the policy. 

The Importance of Length of Service and Disciplinary Record 

An employee’s length of service and disciplinary record may be relevant when deciding on an appropriate sanction. 

An employee who has served an organisation for many years without prior disciplinary action may have circumstances that warrant consideration when determining whether dismissal is proportionate. A clean disciplinary record does not excuse misconduct, nor does lengthy service guarantee that an employee will retain their position. 

Similarly, a history of repeated misconduct or previous warnings may be relevant when determining whether further corrective measures are likely to be effective. 

These factors are not meant to excuse wrongdoing. Rather, it ensures the sanction reflects the seriousness of the misconduct and the circumstances of the employment relationship. Employers should therefore ensure that relevant mitigating and aggravating factors are properly considered and recorded before a final disciplinary decision is made. 

What About a Breakdown in the Trust Relationship? 

Employers sometimes argue that misconduct has destroyed the trust relationship between the employer and employee, making continued employment untenable. 

A breakdown in trust may provide a legitimate reason for dismissal in appropriate circumstances. However, an employer should not simply assert that trust has been lost without considering the evidence supporting that conclusion. 

The judgment reinforces the importance of distinguishing between an employer’s assertion that trust has broken down and evidence showing why the misconduct makes continued employment untenable. 

Depending on the nature of the misconduct, the facts may support a breakdown in trust. However, employers should explain and substantiate their position rather than assume that every breach of a workplace rule automatically destroys the employment relationship. 

Practical Considerations Before Dismissing an Employee 

Before deciding to dismiss an employee for misconduct, employers should consider the following questions: 

• Is there a clear and valid workplace rule, and was the employee aware of it? 

• Has the alleged misconduct been established through a fair disciplinary process? 

• How serious was the misconduct, and what harm or risk did it create? 

• Does the applicable disciplinary policy prescribe a particular sanction, and what does it actually provide? 

• What is the employee’s disciplinary record and length of service? 

• Are there relevant mitigating or aggravating circumstances? 

• Would a warning or another corrective measure be appropriate? 

• If dismissal is proposed, can the employer explain why a lesser sanction would not be appropriate in the circumstances? 

• If the employer alleges that trust has broken down, is that conclusion supported by evidence? 

These questions can help employers make more informed decisions and ensure disciplinary action aligns with South African labour law requirements. 

A careful assessment before dismissal may also help employers explain and defend their decisions if an unfair dismissal dispute arises. 

Practical Advice to Employers 

Employers should ensure that their disciplinary policies are clear, consistently applied and aligned with applicable labour legislation and the Code of Good Practice: Dismissal. 

Useful practical steps include: 

• Review disciplinary policies regularly to ensure that the rules and potential sanctions are clearly stated. 

• Communicate workplace rules and disciplinary standards to employees. 

• Investigate allegations of misconduct properly before taking disciplinary action. 

• Give employees a fair opportunity to respond to allegations against them. 

• Consider the seriousness of the misconduct together with relevant mitigating and aggravating factors. 

• Apply disciplinary rules consistently, while recognising that different circumstances may justify different outcomes. 

• Record the reasons for the sanction imposed, particularly where dismissal is selected over a lesser disciplinary measure. 

• Obtain appropriate labour-law advice when allegations are serious, facts are disputed, or the proposed sanction may be challenged. 

A zero-tolerance policy should support fair and effective workplace discipline, not replace the decision-making process required by law. 

Conclusion 

Zero-tolerance policies can be valuable tools for setting workplace standards and making clear that certain forms of misconduct will not be accepted. However, they do not automatically justify dismissal whenever an employee breaches a workplace rule. Employers should consider the nature of the misconduct, the employee’s disciplinary record, length of service, the possibility of corrective discipline and whether the proposed sanction is justified. 

The practical question is not simply whether an employee breached a rule. It is whether dismissal is a fair and appropriate response to the misconduct established. 

Employers who apply disciplinary policies carefully, consider relevant circumstances and document their reasons for imposing sanctions are better placed to make fair decisions and reduce the risk of avoidable labour disputes. 

For further assistance, consult an attorney at SchoemanLaw. 

https://schoemanlaw.co.za/services/labour-and-employment/  

 Anastacia Willemse | SchoemanLaw Inc   

Candidate Attorney: Labour and Employment Law