by Sep 21, 2023Employment, Health and Safety

The South African courts, including the Labour Court and the Labour Appeal Court have, in various judgments acknowledged that South African workplaces, particularly factories, warehouses and mines, are inherently dangerous places, and that, as a result, employers are not only permitted, but are also legally obligated to implement workplace rules to provide safe and healthy workplaces.

A number of these judgments have focused on workplace rules around zero tolerance in relation to alcohol and other intoxicating substances in the workplace.

With the South African courts acknowledging the legal responsibilities placed on employers in terms of the Occupational Health and Safety Act (OHSA) and the Mine Health and Safety Act (MHSA), to provide healthy and safe workplaces, the logical question is why, in these circumstances, employees are, after being dismissed for breaching these “zero tolerance” rules, re-instated by the Commission for Conciliation, Mediation and Arbitration (CCMA)?

A review of the awards of the CCMA and judgments of the Labour Court and the Labour Appeal Court, where employers have been required to re-instate employees who have been dismissed for transgressions relating to “zero tolerance” drug and alcohol policies, shows that, in many instances, employers are their own worst enemy because they do not apply the workplace rules consistently or  do not comply with the disciplinary codes and procedures that are implemented for the relevant workplaces.

The reinstatement of employees under these circumstances undermines the commitment to “zero harm”, and the workplace rules that are based on zero tolerance.

In this article, we consider two recent, relevant judgments of the Labour Court.

In the matter of Tiger Brands (Pty) Ltd and AFADWU obo Ben Mabizela published on 4 September 2023, under case number JR346/20 (Tiger Brands Judgment), the Labour Court was asked to review an award of the CCMA where the CCMA had found that the dismissal of the employee was unfair under the circumstances, and that the sanction of dismissal was too harsh.

The employee was employed as an operator of heavy machinery at the Tiger Brands Beverage Plant in Germiston.

The Labour Court acknowledged that Tiger Brands is obliged to provide a safe working environment (under the provisions of the OHSA) and had, as a result, implemented a disciplinary code regarding alcohol or drug related offences which were classified as serious misconduct. In addition to its disciplinary code, Tiger Brands implemented a zero tolerance policy for employees testing positive for, amongst others, alcohol. The policy was implemented following extensive engagement with the employees who were made aware of its content, and Tiger Brands went so far as to arrange for the company doctor and officials from the South African Council for Alcoholism and Drug Dependence to visit the Plant to address any questions from employees regarding the policy. Relevant employees were also trained and qualified to operate the alcohol testing equipment.

The zero tolerance policy went further than Tiger Brands’ disciplinary code, providing that being under the influence was a serious misconduct which would normally result in summary dismissal, and that only in exceptional circumstances, would disciplinary action of a final written warning be applied (i.e. the normal sanction would be dismissal, unless exceptional circumstances dictated that a reduced sanction of a written final warning should be applied).

In this case, the employee was subjected to alcohol testing on 7 January 2019 (January incident), when he tested positive and was sent home. He returned to work the following day, and thereafter, underwent daily testing. In April 2019, the employee again tested positive for alcohol (April incident), and was sent home, but returned to work the following day and continued working as normal.

Two months later, in June 2019, the employee was required to attend a disciplinary hearing in respect of the January incident, which had been delayed. The employee was issued with a final written warning, which he unsuccessfully appealed.

In October 2019 the employee was required to attend a disciplinary hearing for the April incident, and was found guilty and dismissed, based on him being on a final written warning.

The Labour Court reiterated South Africa’s settled law that disciplinary action is intended, amongst others, to be a deterrent, and that an employee cannot be dismissed as a result of having a final written warning that was issued after a second offence i.e. the employee was issued with a final written warning after the April incident, and therefore, the final written warning could not achieve its intended consequence i.e. a deterrent to the employee from committing the same disciplinary offence, again.

Under normal circumstances, an employer in the position of Tiger Brands should have been able to successfully sustain the dismissal of the employee because the zero tolerance workplace rule was in place, it had been implemented following appropriate consultation and engagements with the employees, and the rule was well known in the workplace. In addition, the personnel who used the alcohol detection equipment, had been trained to do so.

Unfortunately, the disciplinary action against the employee in respect of the January incident was delayed, and the sanction of a final written warning, was only given after the April incident. In addition to the final written warning being given for the January incident (which should only have been given in exceptional circumstances), the employer gave the sanction of dismissal, for the April incident, based on, amongst others, the final written warning for the January incident, which was given after the April incident. This meant that the final written warning for the January incident was not given an opportunity to have the desired effect (deter the employee from repeating the offence). There were also suggestions that there was inconsistent application of sanctions for breaches of the workplace rule and policy in relation (but this is not clear from the Tiger Brands Judgement).

The key lessons are that employers must take timeous disciplinary action in compliance with their disciplinary codes and procedures, the disciplinary codes and procedures must be consistently applied, and a sanction, such as a final written warning cannot be taken into account where this sanction is imposed after a second or further acts of misconduct.

Having sat through countless inquiries held under the provisions of the OHSA and the MHSA into fatal accidents, and seen the devastating consequences of fatal accidents, it is extremely difficult to accept reinstatement of an employee in these circumstances, but it is equally difficult to argue against established legal principles, and the focus must be on getting the disciplinary processes right.

The second judgment is that of the Labour Court in the matter between the Association of Mineworkers and Construction Union (AMCU) on behalf of Motswadi handed down on 11 August 2023 under case number JR1695/2021 (AMCU Judgement).

Mines are inherently dangerous, for various reasons, including certain mines being fiery mines as a result of gases that can be exposed in the underground workings. South Africa’s mining industry has, tragically, experienced a number of methane ignitions and explosions over the years, and the dangers associated with contraband (cigarettes, lighters, matches, electronic devices, etc.) are well known. As a result, mining companies implement stringent policies and procedures which prohibit contraband from being taken into the workings of mines.

In this case, the employee was found to be in possession of a cellular phone, before he had actually entered the underground workings (this was discovered while he was still on surface in proximity to the lamp room). In the lamp room, the workplace rule against the possession of contraband was clearly displayed. The employee acknowledged that he was aware of the rule prohibiting contraband from being taken into the underground workings, and the consequences of contraband being taken into these workings.

The arbitrator from the CCMA upheld the dismissal of the employee, and AMCU brought an application to the Labour Court, to review the decision of the arbitrator to uphold the fairness of the dismissal for breaching the workplace rule against the possession of contraband in a demarcated non-contraband area.

In his award, the arbitrator concluded that the employee had breached the workplace rule, and he found that it was common cause that the employee had entered the workplace through the lamp room, that he had been found with a cellular phone on the walkway to the underground area, that there was a notice board at the entrance to the lamp room, notifying employees of the prohibition of contraband, and that the employee had admitted that while it was not his intention to do so, he had entered a non-contraband zone with his cellular phone. The arbitrator also emphasised that the employee had acknowledged that he was aware of the danger of bringing contraband into the prohibited area, and that this could lead to an explosion.

AMCU contended that the arbitrator’s award was reviewable because the arbitrator had failed to consider relevant evidence including, amongst others, inconsistent application of discipline, and that the sanction of dismissal in the circumstances was too harsh.

The Labour Court dismissed the application to review on the basis that the evidence disclosed that a contravention of the contraband rule was a serious offence, for which the penalty of dismissal was ordinarily the consequence. The Labour Court also acknowledged that the rule exists to satisfy stringent safety requirements at the mine, and is specifically designed to avoid injuries and fatalities in an industry that is inherently dangerous.

The Labour Court concluded that while the arbitrator’s decision might be described as severe, it was however reasonable based on the available evidence, taking into account the rationale for the rule and the risk management systems that are required in the mining industry.

So what is the difference between the two judgments?

In the Tiger Brands Judgment, it appears that the employer had inconsistently applied the “required” sanction prescribed for contravention of the zero tolerance alcohol policy (dismissal), which was exacerbated by the timing of the disciplinary action in relation to the January incident.

In the AMCU Judgement, while dismissal may have been regarded as harsh taking all of the circumstances into account, including the evidence of the employee that he had not intended to take the cell phone into the prohibited areas, the rationale for strict compliance with the contraband rules, is sound, and was consistently applied. The consequence of an explosion in mine workings can be catastrophic, and this was no doubt an important consideration for the Labour Court.

In conclusion, employers are permitted, and legally obliged to implement appropriate workplace rules in support of zero tolerance and the commitment to zero harm, but they must be consistent in the way that these rules are applied, and disciplinary action must always be taken timeously.