LABOUR LAW – UNFAIR LABOUR PRACTICE – MISCONDUCT OF BEING AT WORK WHILE UNDER THE INFLUENCE OF INTOXICATING ALCOHOL DURING WORKING HOURS. Bears v !Hoaeb NALCMD

The respondent was employed by the appellant in Windhoek in 2018 and from December 2019 he worked as a Stock Controller at Bears Outjo. On 24 August 2020, the respondent, while at work and during working hours, was suspected to be under the influence of alcohol. The appellant suspended the respondent. On 28 August 2020, a disciplinary hearing was conducted where the respondent was charged for being under the influence of alcohol during working hours in breach of the company Code of Ethics. On the same date, the respondent was convicted as charged and dismissed with immediate effect.

The appellant’s internal procedures do not make provision for internal appeals. The respondent referred a dispute of unfair dismissal to the Office of the Labour Commissioner alleging that his dismissal was both procedurally and substantively unfair. The arbitrator conducted an arbitration hearing and subsequently delivered an award on 18 June 2021, where he ruled that the termination of the respondent’s employment contract was substantively and procedurally unfair. Discontented by the award, the appellant appealed against the entire award.

SIBEYA J considered the scheme of the employment relationship between the appellant and the respondent in respect of the misconduct charge of being under the influence alcohol (intoxication) during working hours, and whether the arbitrator misdirected himself when he found that it was not proven that the respondent was under the influence of alcohol during working hours? Held that:

1. If employees are charged with being ‘under the influence of’, evidence must be led to prove that their faculties were impaired to the extent that they were incapable of rendering the expected services.
2. The appellant failed to prove the charge of being under the influence of intoxicating alcohol against the respondent on a balance of probabilities.
3. The appellant failed to establish that the respondent did not render services required from him even at a minimum level due to alcohol intoxication.
4. Further that, the appellant failed to prove the level of intoxication of the respondent and as a matter of consequence, it cannot, therefore, be said that the appellant established a valid and fair reason to dismiss the respondent.
5. Further that, a matter not raised in the notice of appeal is not available for the appellant to pursue during the appeal. The notice of appeal did not contain any ground that questioned the order of reinstatement in the award, but cried foul in the heads of argument that the order was not fair.

As a result, the award issued by the arbitrator in favour of the respondent was confirmed in so far as it was held that the dismissal was substantially unfair, and the appeal was against the arbitration award was dismissed.

Bears v !Hoaeb NALCMD 29 September 2022.