All businesses have the need to celebrate success! Employers are often expected to provide a platform to celebrate successes. This often takes the form of either a company year-end function, quarterly team-building, or monthly get-togethers. Whatever the frequency, it comes as no surprise that alcohol is never in short supply at these functions.
Unfortunately, it is often safe to assume two probable consequences:
· If alcohol is served at a company functions, it is unlikely that all employees will abstain, and
· Those who do consume alcohol at such functions are likely to consume relatively high quantities thereof, as the company may be paying.
However, employers are exposed to significant risk when alcohol is served at these functions:
· The doctrine of “vicarious liability” causes employers to be held liable for the actions of their employees, should such acts be committed within the course of the employee’s employment. The attendance of a company function is more often than not regarded as compulsory.
· Prejudice to the employer’s reputation in the marketplace due to alcohol-driven unsavoury acts, especially as these functions are often held in the public domain.
· A duty of maintaining a safe and healthy working environment, as far as reasonably practicable, is imposed on the employer by virtue of the Occupational Health and Safety Act.
· Incarceration of an employee, or, infinitely worse, multiple employees, due to driving under the influence of alcohol is likely to result in a supervening impossibility of performance, thereby impacting upon productivity in the workplace.
Employers should take proactive steps in the interest of mitigating these risks, whilst maintaining a strong focus on celebrating successes and building an organisational culture that builds “team spirit”. The balance is often difficult to attain.
However, employers have a relatively wide latitude in terms of enforcing rules to ease the risks associated with alcohol being served at company functions.
The employment relationship is not suspended for the duration of a work function. The employee is bound by a common law duty of furthering the interests of his employer, and to refrain from misconduct in general. There is a duty on the employee to maintain conduct that is not prejudicial to the employment relationship or the maintenance of good order.
In Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), the court found that there is a standard of ethical behaviour that the employer does not need to remind employees about. If the employer could prove breach of this, it does not matter that the offence is not in the code, the employer could discipline the employee for the misconduct.
In Le Roux & Van Niekerk, The SA Law of Unfair Dismissal (1994), it is stated that: “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.” Where a nexus exists between the conduct perpetrated by an employee, even outside of the normal work context and the employment relationship, the employer is entitled to take action against such an employee.
Employers should thus seek to take proactive steps by implementing the following measures to mitigate the risks inherent in making alcoholic beverages available to employees during company functions:
· A policy on company year-end functions, in addition to the employer’s alcohol policy, should be implemented. Such a policy must make explicit the fact that the conventional rules governing conduct at work would by no means be suspended during such a function. Such a policy should further require that each employee must consume alcohol in a responsible manner.
· The alcohol served at a company year-end function could be limited to beverages with a lighter alcohol concentration, such as beer and/or wine, as opposed to spirits.
· A moratorium could be placed on consumption should a particular employee have reached the consumption of a pre-determined number of alcoholic beverages. A “ticket” system may be effective in limiting the number of beverages that an employee may consume.
· Food should be made available at year-end functions to limit the absorption rate of alcohol consumed.
· Policy provisions should enforce that no employee should be encouraged to consume alcohol if such an employee elects to limit his or her level of consumption or abstain from alcohol consumption completely.
· Transport should be made available should it be anticipated that employees would consume an amount of alcohol that is in excess of the legal driving limit.
· Function “Marshals” could be appointed, preferably on a rotational basis, to monitor the enforcement of rules, the maintenance of ethical standards of conduct, and responsible consumption during a company function. The person allocated to fulfil such a function should abstain from alcohol consumption and should maintain a sober state of mind for the duration of the event.
As we approach the “silly season” for celebrations, employers should proactively remind employees prior to each function where alcohol is to be served, that any conduct that is against the conventional rules that govern conduct in the organisation, would attract disciplinary action which can include dismissal.
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