- Labour Court says that a supervisor knowing about smoke breaks is not the same as giving authorisation.
- The court found that an arbitrator ignored crucial evidence where employees admitted they were not entitled to take the breaks.
- The dispute over unauthorised workstation absences will go back to arbitration before a different commissioner.
A recent Labour Court judgment has put workplace smoke breaks at the centre of an important legal debate, finding that employees do not automatically have permission to leave their workstations just because supervisors know the practice takes place.
Acting Judge II Mahomed found that the real legal question was not whether employees smoked during working hours, but whether repeatedly leaving their workstations amounted to workplace misconduct.
The judge said the arbitration award blurred the difference between supervisors being aware of the practice and employees actually being allowed to take the breaks.
Hidden camera uncovered repeated smoke breaks
Fischer Tube Technik employs production-floor operators who manufacture stainless-steel motor vehicle exhaust systems. The dispute began when production manager Kendall Hibbert found hand-rolled cigarette butts and a packet of leafy substance in a secluded part of the factory not covered by fixed surveillance cameras.
Suspecting the substance was dagga, Hibbert set up a concealed camera in the area. Over several weeks, the footage showed four employees repeatedly gathering there during night shifts to smoke.
The workers were charged with unauthorised possession or use of dagga on company premises, and with deliberately failing to perform their duties by leaving their workstations without permission. After disciplinary proceedings, all four employees were dismissed.
Employees admitted they were not entitled to the breaks
During arbitration, employee witness Hunnington Mpika admitted that the workers often left their workstations to smoke whenever machinery had broken down. He also made a concession that became central to the Labour Court’s decision, telling the arbitration that they were “not entitled to that particular break.”
Judge Mahomed found that the commissioner did not properly consider this admission when deciding if the employees had committed misconduct. Instead, the arbitrator accepted that supervisors knew about the practice and treated that knowledge as evidence of permission.
The judge said the evidence showed “supervisor knowledge rather than supervisor authorisation,” adding that the arbitration award moved from proof of awareness to a finding of permission without any direct evidence that supervisors had actually authorised the smoking breaks.
Why the misconduct charge was revived
The Labour Court also rejected the commissioner’s finding that the charge of unauthorised absence was vague.
Judge Mahomed held that the concealed-camera footage provided dated and time-stamped instances of the employees leaving their workstations, which made the allegation detailed enough to answer. The court also found that the commissioner did not engage with evidence that repeated departures disrupted production, led to operational costs, and created health and safety risks.
In one of the strongest passages of the judgment, Judge Mahomed said, “The commissioner failed to weigh material concessions and contradictions,” and that the combined effect of those errors distorted the enquiry into whether the employees had committed workplace misconduct.
Dagga allegation remains dismissed
Although Fischer Tube Technik succeeded in reviving the workstation misconduct dispute, the court did not overturn the finding relating to the alleged dagga use.
The Labour Court agreed that the employer’s investigation, while genuine and substantial, was incomplete in key respects. No forensic testing was done on the recovered substance, the chain of custody was unclear, and the video footage could not show what the employees were smoking.
For that reason, the finding that the dagga-related charge was not proved remains in place.
Fresh arbitration will decide the smoke break dispute
Rather than declaring the dismissals fair, the Labour Court ordered a new arbitration before a different commissioner to decide whether the employees’ repeated smoke breaks amounted to unauthorised workplace misconduct.
Judge Mahomed said there are still unresolved issues, including whether supervisors tacitly allowed the breaks and whether dismissal was a consistent sanction in a workplace where similar conduct had reportedly led to final written warnings and not dismissal.
Only the dispute about the fairness of dismissal for unauthorised absences from workstations will go back to arbitration.
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