The Labour Appeal Court (“the LAC”) has recently handed down two judgments which confirm that it is an employer’s prerogative to adopt its own disciplinary rules that establish standards of conduct required of its employees.
In Reinhardt Transport Group (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (2023) 44 ILJ 172 (LAC), (“Reinhardt”) and SGB Cape Octorex (Pty) Ltd v Metal & Engineering Industries Bargaining Council & Others (2023) 44 ILJ 179 (LAC) (“Octorex”) the LAC that discipline is the prerogative of an employer and that the rules set out by the employer to enforce discipline must be taken seriously by all employees and must be respected by the courts. In the Octorex case, the Court emphasised that the purpose of the employer adopting its own disciplinary rules is to create certainty and consistency in the workplace.
Factual background
In the Reinhardt case, the employer, who conducted a national trucking business, dismissed one of its employees for misconduct for tampering with a drive cam/camera which had been fitted to the truck allocated to him. The employer had implemented a ‘Drivecam Event Recording and Tampering Policy’ as a security measure to monitor the conduct of its truck drivers whilst on duty.
The employee was advised of the policy and its significance and he was made aware that if breached, dismissal would follow. In his defence, the employee argued that he had covered the drive cam because he was taking a bath in the truck. The CCMA found the employee’s dismissal substantively unfair. The Labour Court dismissed the employer’s review application with costs stating that the determination of the fairness of a dismissal is to be left to the arbitrator.
In the Octorex case, the employer, a large industrial services company with a zero- tolerance policy towards the use of drugs, dismissed one of its senior employees for testing positive for drugs whilst on duty operating a boiler machine. The Bargaining Council found that the employee’s dismissal was substantively unfair and ordered his reinstatement. On review, the Labour Court held that there was no evidence of a zero-tolerance policy at arbitration nor was there any evidence that the employee compromised the safety and integrity of other employees. Therefore, the review application was dismissed.
Findings of the court
The LAC in the Reinhardt case clarified that Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) does not entitle the Labour Court to simply say that fairness is a matter to be decided entirely by the commissioner and to absolutely refrain from interfering in that decision. The LAC held that the Labour Court merely paid lip service to the principle of fairness and reasonableness set by Sidumo. The Court further clarified that Sidumo confirmed that the arbitrator should not abdicate their duties but should, themselves, take into account all relevant circumstances including:
- the importance of the rule that had been breached;
- the reason why the employer decided to impose the sanction of a dismissal;
- the basis of the employee’s challenge to the dismissal;
- the harm or potential harm which may be caused by the employee’s conduct;
- whether additional training and instruction may result in the employee not repeating the misconduct; and
- the effect of dismissal on the employee and his or her long-service record.
The LAC found that the arbitrator in this instance failed to consider all the above factors. The LAC emphasised that the arbitrator is expected to be impartial and take a reasonable decision which embraces fairness. The Court said that:-
“A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. He is not entitled to simply ignore the importance of the rule and take a decision which will render the rule nugatory. Discipline is a prerogative of the employer and the rules set out by the employer to enforce discipline must be taken seriously by all employees and must be respected by the courts”.
Accordingly, the LAC found that the Labour Court erred in dismissing the review without evaluating the circumstances under which the employee was dismissed. The employee’s dismissal was found to be substantively fair.
In the Octorex case, the LAC found that the employer’s policy was clear that regardless of whether an employee had a clean record, a first offence attracted dismissal. The LAC held that the Labour Court had failed to appreciate the importance of the employer’s zero-tolerance to drugs policy. The LAC emphasised the purpose of employers adopting rules, which is to create certainty and consistency in the enforcement of discipline. The LAC referred to the Code of Good Practice on Dismissals, which provides that employers should apply discipline consistently. The Court found that the rule had been consistently applied to all employees and that the arbitrator clearly failed to recognise the employer’s entitlement to set its own standards to enforce discipline in its workplace. Therefore, it declared that the dismissal was procedurally and substantively fair.
Conclusion
These judgments from the Labour Appeal Court reaffirm the prerogative of employers to, within limits, set their own standards of discipline in the workplace provided that those standards are made clear to employees and are consistently applied. Employers should regularly review and update their disciplinary and other policies to achieve desired standards of conduct in the workplace and to ensure that discipline is applied consistently. The issues of zero-tolerance policies and consistency in the application of discipline are not as straightforward as they may seem and legal advice should be taken on these issues, where necessary.
