EMPLOYMENT LAW
Zero Tolerance Disciplinary Offences The application of zero tolerance policies has become something that employers, particularly in work environments that require the utmost safety compliance, use to ensure that safety standards are adhered to. In its recent decision in Air Products South Africa (Pty) Ltd v Matee and others the Labour Court had to answer the question whether an employee’s failure to adhere to an employer’s zero tolerance policy rendered the employee’s dismissal substantively fair.
THE FACTS
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n this case, the employer, Air Products South Africa, sought to review and set aside an arbitration award in which the commissioner had found the dismissal of the employee substantively unfair. Air Products is in the business of manufacturing and distributing substances including, oxygen, nitrogen, hydrogen and carbon dioxide. These gasses are manufactured and stored in highly pressurised storage units at Air Products facilities. Due to the highly hazardous environment for the employees, contractors and the surrounding community, Air Products adopts strict protocols, policies and procedures including a zero tolerance approach to alcohol. In terms of the policy, employees can take a voluntary breathalyser test if they believe that they could be under the influence of alcohol. Should a test be positive, the employee can elect to return home, in which case the employee will be charged with absenteeism. In circumstances where the employee elects not to take the voluntary test, and enters the employer’s premises, the employee could be subjected to a test by a security guard. If an employee tests positive, the employee will be required to take a second test 20 minutes after the first test. Should the second test also return positive, the employee will be
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sent to a medical facility where a blood sample will be drawn for testing. If the blood test shows that the employee has alcohol in his blood the employee could be subjected to a disciplinary hearing. The employee in this matter agreed to take a breathalyser test when he reported for work at the Air Products’ facility gate at 6:50am. The result indicated that there was alcohol in his bloodstream. This was confirmed by a second test conducted approximately 20 minutes later. He then signed a consent form to have a health practitioner conduct a blood test at a laboratory, the results of which indicated that the employee, had a blood alcohol level of 0.03g/dl. The employee was suspended and a disciplinary hearing was convened. He pleaded guilty to the charges levelled against him and was dismissed. Aggrieved by his dismissal the employee referred a dispute to the relevant bargaining council to challenge the substantive fairness of his dismissal.
WAS THE DISMISSAL FAIR? At the arbitration the employee stated that the positive test for alcohol was due to the fact that he had consumed alcohol the previous day and that
