The Labour Appeal Court had to consider this in Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others (JA 49/14) [2015] ZALAC 23.

Shoprite Checkers had a policy that all employees had to declare any personal belongings upon entering the store. Failure to do so would lead to dismissal unless the employee could provide a receipt for the goods, in which case the sanction would be a warning.

The employee in this case, one Ms Mzolo, was aware of this zero tolerance policy, but failed to declare a roll-on deodorant when she entered the store, and couldn’t produce proof of purchase when she left, and was searched.

Shoprite dismissed her. She went to the CCMA where the commissioner found the dismissal to be an appropriate sanction and substantively fair. The Employee then applied to the Labour Court to have the award set aside. The Labour Court held that the dismissal was not a fair sanction and set the award aside. Shoprite appealed to the Labour Appeal Court (LAC) which agreed with Labour Court and ruled that:

• While Shoprite’s policy of declaring goods was a measure to counter theft, it did not create the offence of theft. The continued breach of this rule may be dismissible, not because it constituted theft but because it allows a wilful refusal to co-operate with the rule to counter shrinkage and it points to untrustworthiness. A single transgression of this rule, unless it involves high value goods, is not sufficient to warrant dismissal.
• Employers will not be able to adopt a zero tolerance policy for just any breach. One must look at how appropriate the policy is to the offence. Adopting a zero tolerance policy does not preclude a commissioner from making a ruling that a dismissal was not an appropriate sanction in the circumstances and to replace it with an appropriate one. A dismissal must be substantively and procedurally fair. An employer cannot contract out of the law dictating fairness of dismissals.
• The award made by the commissioner was unreasonable in the circumstances.

Employees must thus be flexible when applying zero tolerance policies and consider whether a warning or dismissal is fairer, given the circumstances of each case.