“The problem with drinking and driving is the mourning after” (sic) – Anonymous
One Friday evening after an extremely long and stressful week on the job you elect to opt for one drink before heading home. You get to your favourite spot and bump into some old school friends that you haven’t seen in eons, oh what a night! One drink turns into two which turn into four which turn into eight, (and that’s probably because you’re already seeing double, by this point). You then decide maybe it’s time to go home, you get in your car put on your favourite tunes and hit the road. As soon as you go around the corner you’re dazzled by flickering blue lights and one of Metro’s finest telling you to pull over. They ask you how your evening has been and kindly request that you blow into their trusty breathalyser. At this point you probably know what happens next, but it begs the question, could this also get you in trouble at work?
The starting point and guiding principle is that what happens beyond the four walls of your employer’s premises is of no consequence to them, however this principle is not absolute. There are numerous instances where an employer may take action for your conduct outside of the workplace.
The first scenario would be when the conduct complained of is regulated in terms of your employment contract or a workplace policy. The second scenario would be that the misconduct complained of has a negative or damaging impact on the employment relationship.
The first scenario is rather self-explanatory; however, it is the second one that requires a more in-depth look.
Conduct Detrimental to the Employment Relationship
The Labour Appeal Court in the matter of City of Cape Town v SALGBC (2011) 32 ILJ 1333 (LC) held that the dishonest conduct of the employee outside of the workplace had a significant bearing on the employment relationship, to such an extent that it warranted the dismissal of the employee.
In order for an employer to lawfully dismiss an employee for misconduct outside of the workplace the employer would have to satisfy two aspects:
In revisiting the above scenario illustrated at the beginning of this discussion; if you are employed as a driver by your employer the possible impact of the drunk driving arrest could result in the suspension or revocation of your driver’s license resulting in you not being able to perform your duties as per the employment contract, or breaking the trust relationship between you and your employer (if for example, you were arrested whilst driving the company vehicle), thus having a detrimental impact on the employment relationship; thereby satisfying the fairness of dismissal, in that instance.
Although, the scenario may be different in another situation, whereby, for example, an employee is employed as a picker, or, perhaps, as a manager, whose duties and responsibilities do not rely on the requirement of driving, in order to carry out your daily activities; in that instance, the likelihood of a sanction of dismissal as a result of being arrested for drunk driving, would most likely not be satisfied. However, the above would preclude the pursuance of charges, by your employer, such as, “unauthorized absenteeism and failing to notify your employer,” for the duration of your arrest, should you fail to inform management, and your arrest falls over your working period.
The crux of the matter lies on whether the employer can draw a causal connection (nexus/link) between the nature of the misconduct (the arrest), on the one hand, and the employment relationship, on the other. In the absence of the above, a dismissal for being arrested outside of working hours, would not be justifiable.
It is important for an employee to understand that certain conduct though seemingly remote and unrelated to their employment may have a devastatingly negative impact on the employment relationship and could result in a dismissal. One ought always to be mindful of the possibly far reaching consequences of misconduct outside of the workplace.
Remember, MISA is just a phone call away.
(Article by Ngoni Goba – Edited by Nichole Turner)
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