Drinking and driving comes back to haunt South African motorist

South Africans must be weary of driving while under the influence this coming holiday season as, even if you are caught and somehow get away with it the first time, it can come back to haunt you years later, warns Bowmans Attorneys.

This was the case with a local motorist who managed to dodge repercussions – for the first time – when he got into a car accident with a company vehicle after having one too many alcoholic beverages.

Fool me once

In June 2017, the accused was operating a company vehicle when he decided to visit a tavern in Queenstown, Eastern Cape, where he drank an unknown number of alcoholic drinks.

On his way home, he was involved in a collision that resulted in the company-issued vehicle being written off.

The employer subsequently investigated the cause of the collision and invited the employee to furnish his version of the events. He duly submitted a written statement claiming he only had one alcoholic drink at the tavern.

Relying on this statement, the employer found that there was no prima facie evidence of misconduct and closed the investigation against the employee, reserving the right to open the investigation and/or take disciplinary action should tangible evidence come to its attention concerning the incident.

The individual was issued with another company vehicle and allowed to continue performing his duties.

Come March 2019, the employer received a report from the South African Police Services indicating that the employed driver’s blood-alcohol content (BAC) at the time of the collision was 0.23g/100ml.

Section 65 of the National Road Traffic Fines Act 1998 specifically prohibits the operation of a vehicle when the driver’s BAC is 0.05g/100ml or higher, hence, the accused’s BAC was approximately four times the legal limit when the accident occurred.

This resulted in the driver being charged with allegations of misconduct in that he drove the company vehicle whilst under the influence of alcohol, as well as for the willful damage to his employer’s property.

The individual was ultimately found guilty on both charges and dismissed pursuant to a disciplinary hearing. His efforts to internally appeal his dismissal were unsuccessful and his dismissal was confirmed on 9 October 2019.

The driver believed the dismissal to be unfair and referred the case to the Commission for Conciliation, Mediation, and Arbitration (CCMA)

The Commissioner, having heard the evidence and the parties’ submissions, issued an arbitration award confirming the now ex-employee’s guilt.

The Commissioner, however, found the sanction of dismissal to be unfair on the basis that the employer knew of the misconduct and still issued the employee with another vehicle and allowed him to work for a further 22 months after the collision.

This, the Commissioner found to be an indication that the continued employment relationship was not intolerable as the misconduct could be resolved by progressive discipline.

In this regard, the Commissioner found that a sanction of a final written warning was more appropriate and ordered the driver’s reinstatement without backpay.

Unhappy with this ruling, the employer instituted a review application in the Labour Court against the Commissioner’s arbitration award.

It contended that the Commissioner had failed to consider and/or properly consider the relevant evidence, and/or failed to attach due weight to the evidence presented before the Commissioner.

In particular, the employer argued that the employee was dishonest in his statement and had indicated that the collision occurred due to him being fatigued, while it later transpired that the collision was caused by his blackout owing to his excessive BAC, which was confirmed by an expert witness.

The Commissioner also ignored the evidence that the employee’s conduct attracted a sanction of dismissal in terms of the employer’s policies.

Further, the employer believed that the Commissioner had ignored and/or failed to assess the evidence before him on a balance of probabilities.

The Commissioner fixated on the withdrawal of the investigation and the employment of the guilty driver for a further 22 months, during which he was issued with a new company vehicle.

The Commissioner misconstrued this to mean that the employer had forgiven and reconciled with the accused.

This was contested by the employer, who also argued that the employee’s dishonesty was ignored by the Commissioner, despite it contributing to the irretrievable breakdown of the trust relationship and intolerability of continued employment relationship.

The employer further highlighted the Commissioner’s failure to consider that, by driving under the influence, the employee had posed a risk to himself and other road users.

The Labour Court agreed with the employer’s contention and found that, had the employee been honest he would not have enjoyed continued employment, as the employer would have pursued the disciplinary process at that stage and would have likely dismissed him shortly after the incident.

The time-lapse would not have been a factor in a subsequent arbitration.

In this regard, the Labour Court found the Commissioner to have inadvertently rewarded the employee for his dishonest and deviant conduct, which the Labour Court found to be unreasonable.

Such conduct reflected his lack of remorse and untrustworthiness, and that progressive discipline would likely be unsuccessful.

The Labour Court found that it was extremely irresponsible, willful, and unacceptable of the employee to operate a vehicle while his BAC level was four times the legal limit.

The Labour Court found that the Commissioner had clearly failed to consider the seriousness of the driver’s misconduct of operating a vehicle with a BAC over the limit, which disregarded the life and safety of both himself and other road users.

The Labour Court found that the employee’s dismissal was fair and that the sanction of dismissal was appropriate in the circumstances.

“This case confirms that the employer is entitled to take disciplinary action where new evidence comes to light, despite having withdrawn any investigation and/or disciplinary proceedings. As the South African maxim ‘icala aliboli’ goes, a case does not rot,” concludes Bowmans.

“Furthermore, the Labour Court’s decision highlights the need for CCMA commissioners to properly consider all evidence and the circumstances of cases before them.”