Employers have a legitimate interest in setting strict rules of work – and in applying them without exception. The CCMA and Court usually enforce strict liability if the rule is reasonable, well known and consistently applied. Strict liability means that the value of items involved in theft cases is irrelevant.
An example is the chocolate factory which allows production line workers to eat as many chocolates at work as they like on company premises. BUT there is a strict rule that any employee who takes even one chocolate out of the factory gate will be dismissed for a first offence.
Strict liability was again tested in a recent Labour Court case. Shoprite Checkers has a strict rule that every employee must “register” personally owned items which she or he brings into the store if the item can be bought in the store. The employee did not register a can of deodorant which security found in her handbag when she was leaving the store.
She said she forgot to register it because she did not usually carry it in her bag. She did not use it that day on her doctor’s instruction. She intended to use it after her appointment with the doctor which she was going to after work. She was dismissed after an enquiry for failing to comply with the rule.
She referred a dispute to the CCMA which confirmed that the dismissal was fair. The case then went to the Labour Court on review. The Labour Court disagreed with the CCMA Commissioner and found the dismissal was unfair. It then went on appeal to the Labour Appeal Court. The LAC agreed with the LC’s decision and reinstated the employee.
The Court found that zero tolerance will only be fair if the circumstances of the case justify a strict liability approach. This means the Court will not automatically enforce strict liability for all offences. It will consider the facts of the case and decide whether strict liability is appropriate and proportional to the offence.
TIP: An employer is entitled to set and apply strict rules of work if they are legitimate and consistently applied. Strict rules to deal with safety and dishonesty at work are the most common examples. However, the Shoprite case has shown that “zero tolerance” does not really and always mean “zero”. The employer must consider the circumstances of the case before deciding whether to apply strict liability. It may not be fair to apply it automatically.
References:
Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others (JA49/14)[2015] ZALAC 23 (24 June 2015)
