Heinrich Böhmke, Originally posted in HRFuture

train crashThe festive season has come and gone and it’s back to work for those who have a job in the delicate 2009 labour market.  For employees in the service industry – the smiling waitrons, tour-guides and shop-assistants – December has been all about work. The lady who gave me my Christmas haircut said it is her busiest month. She put in punishing overtime and hardly got any sleep. This was clear in her bleary eyes and distracted manner. I sat very still when she brought out the razor for my side-burns.

There are other employees for whom exacting overtime regimens are not seasonal but chronic. So understaffed are certain hospitals, so lacking are millwright skills, that some devoted employees find themselves routinely over-worked. It is too easy to say that this is their choice. In some workplaces just keeping things afloat requires all hands on deck at all times. In a legal and operational sense, overtime has become compulsory.

Obviously there are statutory caps to the amount of overtime most workers may perform: ten hours a week. The impulse of employers to overwork a few employees rather than to hire an adequate workforce is also discouraged through statutory premiums for overtime. Skills development levies and learnerships also encourage expansion of the labour market. But there are many employers who work the few employees they have to within the boundaries of what the law and human physiology allows.

The SALSTAFF obo Venter / Metro Rail [1999] 1 BALR 59 (IMSSA) has been in the law reports for ten years although it is not well known. This case considered the fairness of dismissing an employee who was worked to the point where he failed to comply with company rules. Venter’s job was to give instructions to train drivers and signalers at one of Gauteng’s busiest stations. One day, he was discovered with half a glass of rum and coke in his hand and a further bottle of the sailor’s spirits within easy reach. Anecdotal evidence from his supervisor was that he reeked like a pirate, was lilting from side to side and had red eyes.

Needless to say, it would not do having a tanked up employee in control of hundreds of lives and millions of rands worth of equipment. Venter was dismissed for behaviour that his bosses said had irretrievably broken the employment relationship.

During the subsequent private arbitration, Venter’s defence suffered under the inconvenient praise of a corroborating witness. He said he had only taken a sip but his workmate swore Venter could hold his liquor like no other and was thus no danger on the day with only half a bottle in him. However, what did emerge in evidence was that, as a matter of routine, train controllers worked 18-hour shifts. The company’s suggestion that this was voluntary derailed, first, because it was unlawful to accept the tender of excessive work and, second, because a norm had developed where these shifts were expected.

The arbitrator accepted that Venter was drunk on duty.  In normal circumstances he deserved to be fired. However, Venter’s situation was not normal. He had no recreational time. His life in fact consisted of working and sleeping.

“It is not surprising, therefore, that, as was testified, the consumption of alcohol by train controlling officers while on duty is commonplace” was the arbitrator’s discomforting take. An employer cannot force or even allow employees to work such lengthy hours on an on-going basis and “not expect employees to pursue recreational activities at work.”

Rather than dismissing Venter, the employer should have addressed the root cause of the misconduct.  This was his psychologically impossible work load and hours.  The suggestion, useful to trade union representatives in the security, domestic worker and transport sectors, is that social needs may in extreme cases even trump company rules.

Heinrich Bohmke (originally posted in http://www.hrfuture.net/legal/driven-to-drink.php?Itemid=938)