SACTWU v H C Lee Co (Pty) Ltd (1997) 18 ILJ 1120 (CCMA)
Even where an assault takes place away from the workplace, it can impact on work relationships in a damaging way, justifying dismissal.
Employees were dismissed for fighting at a Christmas party, held away from the employer's premises, at which the employer provided alcohol. In the course of the fight, senior executives of the employer were crudely insulted by the employees. All employees were paid normal rates for attending the party. The CCMA held that there was sufficient links between the off-premises misconduct and the employment relationship to justify dismissal.
Extract from the judgment:
[At p 1122] The significance of whether the fight took place within or outside the company's premises lies in a widely accepted view that an employer's jurisdiction over employee misconduct ends at the company gate. As Le Roux & Van Niekerk put it:
'As a general rule an employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some interest in the conduct of the employee. An interest would normally exist where some nexus exists between the employee's conduct and the employer's business. In the absence of such nexus, the employee's conduct is likely to be non work-related conduct, or as it is sometimes termed, ''off-the-job' conduct.'
(P A K le Roux & A van Niekerk The SA Law of Unfair Dismissal (1994) at 184.)
It has also been accepted that where employee misconduct occurs off company premises but impacts on the workplace, the employer is entitled to take disciplinary action against the I employee. The employer has to establish that it has a legitimate interest in the matter in the sense that the misconduct is disruptive to business or affects the company's reputation. In a number of decided cases off-the-job conduct was found to justify disciplinary action. In NUM & others v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ 739 (IC) an assault on a J company bus after the completion of a shift was held to be a dismissible offence. In Van Zyl v Duhva Opencast Services (Edms) Bpk (1988) 9 ILJ 905 (IC) an assault outside working hours in the mine village was held to be a dismissible offence because it was work related in that it had an effect A in the work situation. In Mavumengwana v Samancor Ltd (Metalloys) (1992) 1 LCD 200 (IC) there was an assault in an area of the company's premises that was accessible to the public. The court found this assault was work related.
The union's argument went along these lines: discipline and dismissal for behaviour that is alcohol related in a context in which the employer is supplying free alcohol is unfair. Further, normal workplace rules - which exist for the safety of workers and to protect the production process - were not carried over to the party setting, particularly as the normal no-alcohol rule was suspended. The company's attitude was that its disciplinary arm reached to the party because (a ) employees were being paid for the day; (b ) the company was footing the bill for the party and was entitled to set the rules for the party; (c ) the company had an on-going responsibility to ensure the safety of its employees, even if this meant excluding from the party those who were behaving in a violent manner; and (d ) although the 'rules' for behaviour at the party were not spelt out to employees, it did not need explaining that any conduct that adversely affected the workplace relationships could result in discipline.
I am satisfied that the Christmas party was sufficiently associated with the running of the company to be regarded as an activity of the company. It was not just a party where employees of the company attended; it was the official company party. It involved almost the entire staff of 300 employees, many of whom witnessed the incidents. The company had more than an obligation to pay the bill; it had an obligation to ensure the safety of its employees at the party. The company was entitled to discipline the applicants because their actions impacted directly on the relationship of trust that is central to the ethos of the company. I find that the company's evidence establishes a legitimate interest in the sense that the misconduct was disruptive to business and affected the company's reputation.
Having decided that the company had a legitimate interest in taking disciplinary action against the applicants, I must decide if dismissal is a fair sanction for their misconduct. It is trite that dismissal is appropriate as a sanction only when the misconduct or incapacity of an employee has impacted on the employment relationship to such an extent that the trust and confidence of the employer in the employee has made the future relationship intolerable. The union and the applicants sought to portray the misconduct as regrettable but normal party behaviour that can be divorced from normal factory behaviour. They stressed their good employment records, specifically that there was no alcohol related misconduct. Certainly it would be unfair to expect at a Christmas party the same decorum and respect of employees that an employer expects in the day to day workplace. Christmas parties are notorious in their departure from ordinary norms. But what distinguishes the present case is not that employees got drunk, but that they involved themselves in assault and insubordination of such an extent that both the marketing director and operations manager were resolute in their view that they could not contemplate a future working relationship with the applicants. The company gave clear evidence that it was consistent in dismissing employees involved in assault and attempted assault. In the light of the seriousness of the misconduct I find that it has impacted on the employment relationship to such an extent that the trust and confidence of the employer in the employee has made the future relationship intolerable. Dismissal is, in these circumstances, a fair sanction.