In the dynamic realm of the working world, team structures, authority lines, and organisational cultures are varied and unique. Amidst the aforementioned variability, however, resides one business based cultural universal, being the need to celebrate success. The satisfaction of this need is more often than not brought about by the often-infamous company year-end function, which is all too often a source of concern for employers.
Notwithstanding the concerns referred to above, employers are often morally and operationally bound by a commonly accepted duty of providing employees with a platform to celebrate successes, be it on an annual or more frequent basis. Whatever the frequency of such interventions, a common theme for alcohol to be served is ever-present, and with good reason.
A tough period in which goals and expectations are set and expected to be achieved invariably creates a certain level of anxiety and stress on the most efficient of work teams. The opportunity to break down the strict confines of professional etiquette, organisational red tape, and to “let one’s hair down” in a proverbial sense, can be seen as a value-laden consideration in terms of building a more unified culture. Alcohol is well known for its efficacy as a “social lubricant” and stress relieving qualities. Alcohol acts on the Gamma-Aminobutyric Acid (GABA) systems in the brain, and thereby boosts dopamine levels, commonly known as the brain’s “reward chemical.” It thus comes as no surprise that alcohol is never in short supply at functions where organisational successes are celebrated. Apart from the impact on the “GABA” neurotransmitter as described above, alcohol is equally well known for its uncanny ability to impair human judgment and ethical inhibitions to a detrimental extent when consumed irresponsibly.
Although faultless conclusions are difficult to establish, alcohol consumption within the South African context is at the very least, particularly noteworthy. A study on South African consumption patterns completed by the World Health Organisation in 2016 suggests that 31 percent of the South African population above 15 years of age consume alcohol. The study also made clear that members of the aforesaid portion of the population who elect not to abstain from alcohol consumption typically consume up to 28.9 litres of pure alcohol per capita, per annum, thereby placing South Africa fifth in the world in terms of concentration of alcohol consumed. Based on these indications, it is convincingly safe to assume two probable consequences:
If alcohol is served at a company year-end 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, at least broadly speaking.
The unsuspecting employer is exposed to significant risk where alcohol is served at year end functions. The abovementioned fact becomes abundantly clear given the following considerations:
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 year-end function is more often than not regarded as compulsory, thereby rendering consideration of this doctrine more prudent.
Prejudice to the employer’s reputation in the marketplace due to alcohol-driven unsavoury acts is in most cases inevitable, especially when considering that year end functions are 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 are thus faced with stark risks in this regard, and 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 does not shy away from “team spirit.” A strong balance between these two concepts are upon a conspectus of all variables not only advisable but legally and morally imperative.
Aside from the imperative nature of taking steps towards risk mitigation, relief is found in the fact that the jurisprudence suggests that employers have relatively wide latitude in terms of enforcing rules to ease the risks associated with alcohol being served at year-end functions.
The first and probably most logical inference to draw from this fact is that 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 a general sense. The relaxation of certain work rules, particularly those relating to alcohol at a year-end function, does not imply that an employee is absolved from all of the rules governing the employment relationship, particularly those that impose a duty on the employee to maintain conduct that is not prejudicial to the employment relationship and the maintenance of good order.
Although the task of collating all of the possible offences that could potentially transpire outside of the normal context of work appears to be an unimaginable task, the matter of Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC) is particularly descriptive. In this case, 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 this, it does not matter that the offence is not in the code, the employer could discipline the employee for the misconduct.
A company year-end function where alcohol is served does not form part of the normal course of the working situation. The conduct of employees at such a function, however, surely has the potential to impact negatively on the interests of the employer, insofar as such conduct relates to the working relationship or impacts upon it. The case-law cited above presupposes that an employer can expect employees to abide by standards of conduct that are ethically acceptable insofar as it relates to the employment relationship.
The academic domain relating to unfair dismissal law in South Africa echoes the aforementioned sentiment, as is contained in Le Roux & Van Niekerk, The SA Law of Unfair Dismissal (1994), in which the following is detailed: “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.” It is thus logical to conclude that 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 who seek to reward their employees by virtue of year-end functions for a job well done should thus make use of the aforementioned wisdom, and seek to take proactive steps by implementing the following measures if they are to mitigate the risks inherent in making alcoholic beverages available to employees during such 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, which is in most instances, very likely.
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 year-end 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.
Employees should be reminded 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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