The case of Enever v Barloworld Equipment South Africa highlights that an employment zero-tolerance policy primarily serves to inform employees that violations will be addressed with utmost rigour. However, the fairness of dismissal will always depend on the specific circumstances of each case

Ms Enever was employed by Barloworld as a Category Analyst.  Barloworld has a zero-tolerance policy for the possession and consumption of drugs and alcohol in the workplace. By accepting and signing this policy, Ms Enever agreed to random, voluntary and scheduled drug testing. In terms of this policy merely testing positive was a disciplinary infringement.

Ms Enever was dismissed after a test showed cannabis use, despite her admitting to recreational use at home. Ms Enever challenged her dismissal as automatically unfair in that it involved unfair discrimination between cannabis and alcohol users. The Labour Court dismissed her claim.

On appeal, the Labour Appeal Court examined the issues in greater detail. It noted that Ms Enever tested positive despite not being “intoxicated” and fully capable of performing her work. The Labour Appeal Court found that the zero-tolerance policy lacked a rational basis and forced Ms Enever to choose between her job and her right to use cannabis at home. This amounted to a violation of her right to privacy and human dignity. 

The Labour Appeal Court thus found her dismissal to be automatically unfair and awarded her 24 months’ compensation.

The key takeaways from this judgement include:

• Zero-tolerance policies do not provide employers with extra-disciplinary or dismissal powers.
• Dismissal for testing positive for alcohol or drugs is only fair if justified by the specific circumstances, such as intoxication and hazardous work.
• The primary role of a zero-tolerance policy is to inform employees that rule violations will be addressed with strictness.
• The fairness of dismissal will depend entirely on the facts of each case.