The flip side to working hard for many of us is… playing hard. Having said that however, “play” in the workplace involves legal boundaries, especially where alcohol is concerned. Who would have thought that an informal Friday afternoon session in the office pub could result in the employer being held liable for damage caused to a third party by an intoxicated employee? Do you have a policy in place that addresses employees’ drinking and driving? No? Well, read on…
Another sobering subject is the plight of informal traders. Did you know that the informal business sector, which is under threat, makes up 10% of South Africa’s GDP?
Welcome to InBrief, our monthly newsletter which will focus on life and law.
Drinks on the employer
To what extent should an employer who makes alcoholic beverages available to employees at the company bar or during a function, bear the liability for any harm that may befall an intoxicated employee?
The UK and Canadian courts have identified two types of hosts: social hosts (e.g. having people over for a braai) and corporate hosts (e.g. a bar which charges people for alcohol and has a duty to stop serving alcohol to patrons who appear to be too intoxicated to drive home).
An employer hosting a function falls within the scope of a corporate host because the employment relationship is deemed to be sufficiently close for an employer to owe a duty to its employees.
It is becoming commonplace for corporate hosts such as bars to:
install breathalyser test machines on their premises;
confiscate patrons’ car keys; and/or
provide details of transport services such as Goodfella’s to their patrons
to mitigate against any liability they may face as a result of an intoxicated patron driving home whilst over the legal limit.
This begs the question: if employers are corporate hosts and if the South African employment relationship is of such a nature that employers can be held responsible for damage caused to others by an employee acting within the course and scope of their employment, does that relationship then also encompass damage sustained by an employee who has consumed more alcohol than that set out in the prescribed legal limit?
In Canada, courts have held employers liable for harm sustained by employees involved in accidents following work functions from which they drove home over the legal limit. In Jacobson v Nike Canada the court held that if the employer had at least attempted to prevent its employee from driving home by confiscating his keys or calling a taxi for him it would have been absolved of a considerable amount of its liability.
Although this specific issue has not yet been dealt with by South African courts, it is likely that when faced with such a matter a South African court would probably decide the matter in much the same way as the Canadian courts did.
We accordingly recommend that employers take proactive measures to mitigate against the potential of such liability arising by:
Publishing a workplace policy which sets out the employer’s zero-tolerance policy towards the consumption of alcohol in the workplace; or
In the event that such a zero-tolerance policy is relaxed, the employer should inform its employees that it does not condone employees driving whilst over the legal limit, nor will it accept liability for any harm which may arise from an employee driving over the legal limit. To this end, attempts at preventing employees from driving over the legal limit may include:
making breathalysers available for employees to test whether they are within the legal limit before driving home;
providing drinks tickets to restrict the amount of alcohol each employee may consume; and/or
providing the details of a taxi service.
Should you wish to implement such a policy in your work place, please contact Sandro Milo at [email protected] for more information.
Informal Traders trump ‘Operation Clean Sweep’
The array of goods and services found on the side of the road in South Africa ranges from sweets and counterfeit DVDs, to hairdressing and bricklaying. If you haven’t found what you were looking for on a particular street, there is always a willing taxi within earshot of the right whistle to take you to the next informal market. The informal business sector in South Africa is a significant contributor to the country’s economic development, making up 10% of the Gross Domestic Product.
This sector earns its name through the distinct lack of regulatory framework in place to govern the inner workings of this industry. While the Businesses Act 71 of 1991 was introduced to create a broad framework within which the informal sector could flourish, the Act stops short of creating regulations with adequate detail to inform specific codes to guide practice. Although the unregulated nature of this sector is in need of change, it has offered some advantages, such as providing affordable goods and services to lower income earners, and, more importantly, has become a buffer for the unemployment crisis ailing the nation presently, by providing the unemployed with opportunities for informal ‘self-employment’ in markets or on roadsides.
On 4 April 2014 the Constitutional Court gave judgment in the South African Informal Traders Forum (SAITF) v City of Johannesburg. The SAITF applied for interim relief to allow 1200 legally registered informal traders to go back to trading from their stalls in the centre of Johannesburg after police officials had evicted them from the area in pursuance of Operation Clean Sweep, an initiative to clear the streets of ‘unsightly’ activity.
In the interest of urban development, public spaces need to be redesigned to facilitate the Corridors to Freedom campaign which will integrate informal trading with other uses of public spaces currently made inaccessible by the unstructured and random set-up of inner city traders. The argument that tipped the scales in Acting Chief Justice Dikgang Moseneke’s judgment was that the City “had gone about achieving its objectives in flagrant disregard for the traders’ rights” and accordingly ordered that the traders be allowed to return to their stalls.
The inner city rejuvenation is an important and exciting campaign being led by the City of Johannesburg, but it should not lose sight of the rights of those people who the rejuvenation is intended to benefit, namely the informal traders who are trying to make a living and who the City evicted from the city centre.