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Misconduct committed outside workplace

Case Law & Legislation Review

By Gary Watkins who can be contacted at www.caselaw.co.za

# MISCONDUCT OUTSIDE WORKPLACE - DISCIPLINARY ACTION PERMISSIBLE where misconduct committed outside workplace impacts on employee's ability to perform work - Alcohol related offences - Found intoxicated en route to work

By By Lucky Moloi; EC795-03 Erasmus v Norkee - Commissioner: Koorts CCMAil November 2003

The commissioner had to determine whether or not the dismissal of the applicant had been substantively fair. The substantive challenge was that the respondent did not prove that the applicant was guilty of the misconduct.

It was common cause that the respondent company was engaged in the forestry industry and the applicant was employed as a fire tower guard on a fixed-term contract with effect from 1 July 2002 to 31 December 2002. The applicant was dismissed on 13 January 2003 after he was found guilty of being under the influence of liquor. It was also common cause that the applicant was late for his shift and that the incident had occurred outside the workplace after the applicant's shift had commenced.

The applicant contested the fairness of his dismissal in that it was not proven by the respondent that he was indeed under the influence of liquor and that the incident, in any event, had occurred outside the workplace whilst he was on his way to the workplace.

Witnesses, who testified on behalf of the respondent, stated that the applicant was found on a public road on his way to the fire tower, and was found to be drunk. The applicant's supervisor was informed of the applicant's state. On his arrival at the workplace, the respondent administered a breathalyser test. The witnesses also testified that the crystals in the test apparatus were yellow and after the applicant blew into the test apparatus the crystals changed to green, indicating that the alcohol level was well over the limit. Furthermore, the respondent testified that it had made the rules with regard to alcohol abuse at the workplace and had an Employee Assistance Program which the applicant opted not to utilise. The respondent concluded by stating that the applicant was afforded a disciplinary hearing after his contract had expired in order to allow him "the benefit of the doubt".

The applicant testified that he had attended the wedding of his cousin on Saturday 14, November 2002. He consumed one glass of sherry, did not feel well and left at 20h30. He got out of bed at 05h45 on Sunday, and was, as such, already late for work. He had no means of contacting his superiors in order to inform them that he felt ill. On his arrival at work, he was asked to blow the breathalyser, which turned from yellow to green. There was no witness present on his behalf to confirm the results of the breathalyser test. He argued that the incident occurred during working hours but he was not yet on duty.

Noted: On the issue of the applicant's conduct outside the workplace, the commissioner noted that the offence was work related as it did affect the work situation. The applicant occupied a position whereby the consequence of an error could have grave consequences for the respondent and it would have been unfair to expect the respondent not to have taken any action when it had met with the applicant before he had reached the workplace under those circumstances.

Further noted: The commissioner further noted that it was clear that the breathalyser test results showed that the applicant had an alcohol blood content in excess of the permissible limit. The commissioner further stated that the applicant's refusal to undergo a breathalyser test proved together with other circumstantial evidence, on a balance of probabilities that he was incapable of performing his duties.

Held: The commissioner, therefore, held that the applicant was correctly found guilty of being under the influence of alcohol.

Further held: The applicant had also confirmed in his evidence that he was issued with a final written warning for the very same misconduct some two months previously. The applicant did not dispute the respondent's evidence with regard to the assistance available with regard to alcohol abuse. The applicant did not lead evidence to the effect that he had an alcohol dependency problem. It was, therefore, the commissioner's view that the sanction of dismissal that was brought against the applicant was reasonable. The dismissal was substantively fair.

Gary Watkins

Gary Watkins

Managing Director

BA LLB

C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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