Employees often regard company policies as being unimportant or not applicable to their employment relationship because these policies do not form part of their signed employment contract. This is not correct. Company policies are important and applicable to employment relationships. 

Why are company policies important?

Policies assist in regulating the employment relationship in conjunction with a signed employment contract. As companies grow and transform, so do the day-to-day operations and needs of the company. These changes may be specific to the industry or working environment, or the needs of the staff. It is therefore important to have specific policies which assist in addressing operational concerns and consider regularly updating policies to address the ever-changing environment and management of the employment relationship and employees.  

In the matter of Khumalo vs Game Stores 2021, the CCMA arbitration award highlighted the relevance of company policies in an employment relationship. This matter involved the breach of a company policy by an employee in possession of an illegal substance (cannabis) while at the workplace.

Case study: Khumalo vs Game Stores 2021

Mr. Khumalo was employed by Game as a cashier for nine months. Khumalo received induction training during which company policies were explained to him, inclusive of the ‘Substance Abuse Policy’, which clearly set out Game’s zero tolerance policy regarding the prohibition of alcohol and drug possession while at work or whilst acting in the course and scope of employment. 

The purpose of the Policy was “… to maintain a work environment which is free from the influence of intoxicating substances to protect the health, safety and wellbeing of all Massmart stakeholders.“. Game also had a ‘Code of Ethics’ which stipulated that being in possession of or smoking cannabis at the workplace is a summary dismissible offense. Only once the induction training was fully completed did Khumalo receive a letter of appointment which doubled as confirmation of his understanding of and consent to the company policies.  

Khumalo, while on a tea break, was detained outside of the mall in which Game’s store is located for being in possession of (and lighting) a ‘dagga zol’. Khumalo was charged with serious misconduct in that (i) he was found to be in possession of an illegal substance and (ii) detained whilst in his employer’s logoed work uniform. Khumalo was dismissed and referred an unfair dismissal dispute to the CCMA on the basis of substantive fairness only. 

During the arbitration, Game placed the following on record:

• Khumalo received induction training during which the Policy was explained to him, and he accordingly was aware the Policy would be applicable to his employment relationship;
• Khumalo signed the letter of appointment acknowledging the terms and conditions contained within the Policy and bound himself to the conditions of employment with Game which included the Policy; and
• While there may not have been proof that Khumalo was under the influence of cannabis, if he had been under the influence, it could have resulted in, inter alia, (i) him failing to scan items which could lead to shrinkage or (ii) reputational harm for Game with him dealing with customers, i.e. he could create a negative impression of Game. 

Khumalo, while conceding he had been in possession of cannabis, stated that (i) smoking of cannabis did not impair his ability to do his job; (ii) he was not issued with a company uniform and did not bring Game’s name into disrepute and (iii) he was not aware of the rules regarding illegal possession as he never saw documents with these rules. 

In determining the outcome, Commissioner Woods considered the following points: (i) Was a rule breached; (ii) The nature and importance of the rule; (iii) Did Khumalo know of the rule or can it be reasonably expected that he knew the rule; (iv) Has the rule been consistently applied and (v) Would dismissal be an appropriate sanction?

Commissioner Woods held that (a) there was a rule in place regarding the prohibition of possession of illegal substances at the workplace; (b) Khumalo was reasonably aware of this rule as his signed letter of appointment makes reference to the following: “The company subscribes to a zero-tolerance policy on alcohol and drug possession whilst at work (for the purposes of these clauses – transportation vehicles will be included in the definition of work) or whilst acting in the course and scope of employment.” and; (c) Khumalo received induction training regarding the company policies.  

The verdict

Based on the above, Commissioner Woods found the dismissal substantively and procedurally fair and the application was dismissed. 

It is important to note that company policies do not have to be incorporated into employment contracts in order to be valid and binding on employees. Companies are permitted to have policies separate to employment contracts, which may be amended from time to time to deal with operational changes within the business. These separate policies are binding on employment relationships. However, employment contracts often make reference to company policies forming part of the employment relationship, and being binding on employees, and this is perfectly permissible. 

It is important for employers to ensure that employees are aware of the existence of all current company policies at the start of the employment relationship. It is also important for employers to make employees aware of policies which have been updated and/or amended during the course of the employment relationship. 

EMPLOYER POLICIES AND THEIR ENFORCEABILITY DURING AN EMPLOYMENT RELATIONSHIP 

Khumalo // Game Stores [2021] 6 BALR 614 (CCMA) 

Candace Bachmann – Associate Attorney

Justine Del Monte & Associates Incorporated