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Misconduct at a year-end function

2022 has come and gone and during December numerous companies celebrated another completed year with year-end functions.  These events are often accompanied by consumption of alcohol. Whilst the purpose of these celebrations is to show the company’s appreciation to its staff members and to provide them with an opportunity to socialise and relax, they are not a free pass for employees to behave in a manner inconsistent with the employer’s policies and rules.

The rule of thumb in an employment relationship is that an employee may not be disciplined or held liable for conduct outside of the workplace. Employees have the right to conduct their private affairs in a manner they see fit. There is, however, an exception to this rule, which allows employers to take action in the event that there is a link between the employee’s conduct and the employer and, in addition, the employee’s conduct could have an impact on the interest of the employer.

Establishing the above will be done on a case-to-case basis taking into account the relevant facts. The Labour Appeal Court in the matter of Horn v Beesnaar NO & others (2022) 43 ILJ 115 (LAC) explained the position as follows:

“Item 7(a) of schedule 8 to the Labour Relations Act 66 of 1995 (the LRA) provides a guideline for the treatment of misconduct in, or of relevance to, the workplace”. In Hoechst (Pty) Ltd v Chemical Workers Industrial Union & another it was made clear that an employer is not necessarily precluded from disciplining an employee’s misconduct which occurs away from the workplace, but that the decision to discipline is subject to a factual enquiry.

“This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer’s size, the nature and size of the employer’s workforce, the position which the employer occupies in the market place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the workforce as a whole, as well as on the relationship between employer and employee and the capacity of the employee to perform his job. At the end of the enquiry, what would have to be determined is if the employee’s misconduct had the effect of destroying, or of seriously damaging, the relationship of employer and employee between the parties.”

Should an employee conduct himself/herself in manner which is inconsistent with the employer’s workplace rules during a work function, it can be argued that there is a link between the employee’s conduct and the workplace, as the conduct occurred during a work function. In establishing whether disciplinary action should be taken, the employer must determine whether the employee’s conduct has a negative impact on the employer/employee relationship. If the answer to the latter is yes, the employer may take disciplinary action.

In practice this would entail that:

  1. Should the function take place at a public venue and the employee acts in a manner which potentially could bring the employer’s good name into disrepute, action may be taken.
  2. Should an employee act in a manner which is unbecoming towards a colleague during a year-end function, action may be taken.

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