COLLEGE OF LAW

DEPARTMENT OF MERCANTILE LAW

STUDENT NUMBER : 62883798

MODULE : Labour Law

MODULE CODE : MRL3702

ASSIGNMENT : Number one

UNIQUE CODE : 803243

DUE DATE : 14th May 2021

Summary facts of the case
The respondent had a company which was involved in chip and wood industry. He employed a number
of employees to help him in performing some of the tasks around the company. Some of these tasks
included operating heavy machinery and handling large logs of wood. Due to the dangerous nature
these tasks, the respondent put in place safety rules around the company to protect the employees
and himself from liability. One of these rules was a Substance and Abuse Policy which advocated for
a “zero tolerance” approach towards substance abuse by the employees. The Policy was signed by all
employees at the commencement of their employment. Furthermore, the respondent conducted
“tool box talks” with the employees about the policy concerned. One of the provisions in the policy
explicitly prohibited the employees from possessing, selling and using illegal drugs at any time.
Furthermore, the policy provided that violation of this provision would lead to dismissal of the
employees from their employment. In 2017, after one of the employees was suspected of substance
abuse, a drug test was conducted on all employees, during which the applicants tested positive for
cannabis. Their urine samples were sent to a certified laboratory for further testing, where positive
results were confirmed. The applicants were called to a disciplinary hearing during which they
admitted to having smoked cannabis. They argued that they had done so outside of the workplace,
however, they were found guilty of being under the influence of intoxicating substance while on duty
and were dismissed.

Issue in dispute
The issue in dispute in this case was whether the decision by the respondent to dismiss the applicants
was substantively fair.

The decision of the court

The court held that the decision by the respondent to dismiss the applicants was substantively fair.

Legal opinion
Applicable rules
In terms item 7 of the Code of Good Practice: Dismissal, in order for dismissal for misconduct to be
substantively fair, it has to comply with the following requirements;- firstly, the employee must have
contravened a rule. The inquiry in this respect involves the following things;- determination of whether
the rule existed or not, the extent the employer can discipline and dismiss employees for misconduct
that takes place away from the workplace and after hours and , if the rule existed, whether or not the
employee contravened it.

Secondly, the rule contravened has to be valid and reasonable. Once it has been established that the
rule existed, and the employee contravened it, the focus shifts from the inquiry of the existence of the
rule to the rule itself. Whether the rule is valid and reasonable in a given case is question of fact which
is determined by taking into consideration the circumstances and needs of the business. Thirdly, the
employee has to aware of the rule at the time he or she contravened it. This requirement emphasises
that an employer can only punish the employee for conducts he or she had knowledge about or could
reasonably be expected to have knowledge of.
Fourthly, there must be consistent application of the rule by the employer. According to the parity-
principle, an employer is supposed to try as much as possible to treat employees who have committed
a similar offense in the same way. However, there are no concrete rules which require the employer
to do so. In Bidvest Industrial Products (Pty) Ltd v Commission for Conciliation, mediation & Others
(2017) 38ILJ 860(LAC), the court emphasised that inconsistent application of the rule is one of the
factors that is taken into consideration in determination of fairness of the dismissal but it is not a
decisive factor of the outcome.

Lastly, the decision to dismiss the employee has to be an appropriate sanction. Even if all the four
requirements discussed above have been met, the decision to dismiss the employee will not be fair
unless it can be shown that the decision to dismiss the employee was itself fair. In making this
determination, the following factors are supposed to be taken into consideration;- the gravity of the
misconduct, the circumstances of the infringement, the nature of the employees’ job, the employees
circumstance and whether other employees have been dismissed for the same offense. In respect
with the employee’s nature of work, where the decision by the employer to dismiss the employee
will be appr

Application of the rules to the facts

In given case, firstly, there is a policy or rule which clearly prohibits the employees of the company
from using illegal drugs and substances. The applicants reported to work while under the influence of
cannabis, hence, their conduct contravened the policy concerned. Secondly, the nature of work which
was being carried out by the applicants around the company was so dangerous, accidents are likely
to happen if the employees report to work under the influence of drugs, hence, the adoption and
implementation of the zero-tolerance policy towards drug and substance abuse around the company
was necessary and reasonable in order to prevent accidents and protect the employees from
unnecessary harm. Thirdly, when the drug and substance abuse policy was being introduced on the
company, the applicants signed it, furthermore, the respondent and applicants had tool box talks
about the policy, hence the applicants were well aware of the policy in question. Fourthly, the
respondent dismissed all the parties who were found guilty of the offense in question, hence, the
applicants were treated the same way as anyone else. Lastly, taking into consideration the dangerous
nature of work the applicants were involved in the company, being under the influence of cannabis
while on duty can cause accidents, hence their conduct constituted a serious misconduct, hence, the
decision by the respondent to dismiss the applicants was an appropriate sanction.

Conclusion
I concur with the court’s decision in this case, 1all the requirements of substantive fairness for a
dismissal of misconduct were complied with by the respondent, hence the dismissal was substantively
fair.
Bibliography
Garbers, C. et al The new essential labour law handbook 7th ed (MACE Labour Law Publications
CC, Centurion)

ACADEMIC HONESTY DECLARATION

Declaration
1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used someone else’s
work, I have indicated this by using the prescribed style of referencing. Every contribution to,
and quotation in, this assignment from the work or works of other people has been referenced
according to this style.
3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it
off as his or her own work.
4. I did not make use of another student’s work and submitted it as my own.

NAME: Edward Mtekama

SIGNATURE:
STUDENT NUMBER: 62883798
DATE: 17th February 2021.
 RESULTS
1 = 9

------------------------------

Total = 9 / 10 (90%)
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COMMENTS