Davies Ndumiso Sibanda
MANY workers wrongly think that they can safely engage in misconduct after working hours. Misconduct at events and facilities organised by the employer is common and many workers get away with it. In one of my earlier articles, I covered the principle that where employees live in employer provided accommodation the employer has a legal duty to protect all who live in the accommodation. While many employees who transgress can be removed and barred from the accommodation, employees can be disciplined using the code of conduct.

In Makwiro Platinum vs Pritchard Paradzai SC46/04, Paradzai who became rowdy and unmanageable at the mine village was dismissed by the Supreme Court. The judge said: “The finding by the Labour Court that the respondent’s conduct had nothing to do with his services under the respondent and was therefore not work-related is not supported by the facts on record. In the first place, the appellant was on duty that weekend; that is the purpose for which he was booked in the village.

“His undisciplined behaviour created a stressful atmosphere and made it impossible for the other employees to get any sleep, factors which could adversely affect his co-employees as regards the service, which they rendered to their employer.

‘In the second place, he threatened to ill-treat the son of a workmate, who was his subordinate at work. Ill-treatment of a subordinate by his superior is likely to have adverse effects on the victim and his work to the detriment of the employer.”

“The Labour Court also found that the appellant should have been disciplined in terms of the village rules. As the respondent submitted, these are in house rules designed to ensure proper administration of the village and do not enjoy the status of a registered Code of Conduct.

“Accordingly, the conduct of the respondent being work related, the only test to be applied is whether the respondent’s conduct amounts to misconduct as defined in the Code of Conduct. If it does, the employer is entitled to proceed in terms of the Code of Conduct. This is the prerogative of the employer.”

This case brings up the fact that where one stays in employer-provided accommodation, he has to behave accordingly otherwise the code of conduct will be applied to the employee and could result in dismissal. The judgment also overturned an earlier Supreme Court decision in Zimparks Limited vs Tawanda Mugarambi SC 196/94 where Justice Korsah had ruled that assault of employees by a fellow employee outside working hours over a dispute that had originated outside work was not work-related. The position that stands today was set in Paradzai’s case where the Supreme Court rejected its earlier position and said, “It seems to me that to accept this proposition as law would be to create a fertile ground for violence outside the work place which may have its origins inside the work place and a working relationship.”

This clearly means any misconduct occurring outside work but has its origins at work can be handled using the code of conduct.

Also, in Mudzingwa vs One Stop Co-op SC 38/01, Mudzingwa who was under the influence of alcohol at a staff party harassed employees and was dismissed. At the Supreme Court, he argued that his actions were outside working hours. The Supreme Court rejected Mudzingwa’s argument and ruled that as the company Christmas party is to foster relations between employees, it was not an opportunity to harass them. In conclusion, an inappropriate behaviour outside working hours or the workplace can result in discipline as long as connection with the workplace can be shown.

Davies Ndumiso Sibanda can be contacted on: email: [email protected]