Employers often believe that a zero-tolerance policy could serve as a silver bullet to remedy all workplace problems by taking speedy and definitive action against employees who dare to breach such policies. We will thus briefly explore the definition, reasons behind such policies, goals, enforceability and other factors which may influence the successful implementation and enforcement of zero-tolerance policies within workplaces.
“Zero-tolerance” means that a particular type of behaviour or activity will not be tolerated, and a zero-tolerance policy does not allow any rule violations. It is clear from the definition that no amount of mitigation or reasoning should result in a different outcome other than having an employee who breaches such policy summarily dismissed.
Such a policy should be aimed at deterring, condemning and ultimately preventing specific behaviours such as:
- Gross dishonesty;
- Willful damage to the property;
- Willful endangering of the safety of others;
- Physical assault;
- Gross insubordination;
- Sexual Harassment;
- Use of Racial and obscene language;
- Use of liquor/substances or reporting for duty while under the influence of such substances (dependent on the industry/workplace).
Why should employers implement a written policy?
The reason for implementing such zero-tolerance policies would be to inform employees of such rules within the workplace and the consequences should such a rule be breached.
What does a zero-tolerance policy achieve, and what are the limitations?
As stated above, implementing such a zero-tolerance policy would deter and prevent gross forms of misconduct within any workplace. However, it would further be to ensure that when an employee breaches such a rule/policy, he would face disciplinary action, the intention of which would be to result in the dismissal of the relevant employee. Even though the employee may know of the zero-tolerance rule/policy and the consequences of breaching the same, an objective chairperson presiding over the disciplinary hearing may, under certain circumstances, not recommend dismissal. It is, however, generally accepted that misconduct such as gross dishonesty, assault, and sexual harassment, amongst others listed above, would result in summary dismissal for a first offence, given that the employer has the relevant policy in place and has applied the same consistently. Such a policy may also only apply to specific employees within the workplace and not all employees across the board.
What are the prospects of enforcing such a zero-tolerance policy?
The CCMA and courts currently take into account (within the relevant context of each case’s merits and consequences) the nature of the employer’s business, the kind of zero-tolerance policy adopted within such business model/workplace, as well as the consistency of its application to employees who had previously breached the policy and thus whether they had also been dismissed in the past.
Which factors should employers consider before implementing a zero-tolerance policy?
A zero-tolerance policy would depend on factors such as the relevant employer’s industry, workplace layout, machinery, tools and any other factor that places an employer’s interests, the public or an employee at imminent risk (of physical harm and/or damages). Therefore, factors such as having a company-issued firearm or a company vehicle on a public road while under the influence of alcohol could justify implementing a zero-tolerance policy to address such conduct. However, this would be in stark contrast to an office administrator or cleaner within the same workplace being under the influence of alcohol, where such a zero-tolerance policy may not be justified or enforceable due to the evident and considerable lack of risk or danger.
Employers should consistently adopt a zero-tolerance stance for the above disciplinary offences, using a disciplinary code or an additional policy. However, before enforcing a zero-tolerance policy for additional offences, including alcohol-related misconduct, employers must consider several factors first.
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