Good day everyone, and welcome to another discussion in our “What if” series, where we bring you insights in the format of a “what if” question on the ever-evolving landscape of employment law. I am Ross Simon from Maserumule Corporate Employment Law, and in today’s discussion we will be unpacking:
What if an employee is arrested for drunk driving while off duty, is dismissal justified?
Employers frequently grapple with whether an employee’s conduct outside the workplace, and beyond working hours, can lead to disciplinary action and possibly dismissal.
The legal question we must answer is whether an employee’s job title, on its own, creates a sufficient link between off-duty conduct and the employment relationship to justify dismissal. To illustrate this, we look at the recent Labour Court decision in
IMATU obo Sauls v City of Cape Town & Others.
The employee in the matter was a Learner Law Enforcement Officer at the City of Cape Town. On 30 June 2023, while off duty, he was arrested for driving his private vehicle under the influence of alcohol. Following a disciplinary hearing, he was found guilty on two charges:
- Charge 1 – was for Drunk driving: He was dismissed on this charge.
- Charge 2 – was one of Disrepute: He allegedly told members of the South African Police Service that the traffic officers who arrested him were arresting “one of their own”. He received a three-day suspension without pay on this charge.
- On the criminal side, he pleaded guilty, was admitted to a conversion programme and completed a rehabilitation course. He has no criminal record. At arbitration, his dismissal was upheld. The commissioner found that his job as a Learner Law Enforcement Officer was, on its own, enough to link his off-duty conduct to his employment. However, the Labour Court determined that the dismissal was substantively unfair.
Relying on previous authority, the Court confirmed that off-duty conduct can justify dismissal, but only where a nexus (link) with the employer’s operational requirements is shown.
The Labour Court’s judgment rested on several findings:
- First. No link existed. His job title alone did not create one, and there was no evidence of any impact on the workforce, the employment relationship or his ability to do his job.
- Second. The commissioner wrongly relied on reputational harm, which belonged to the separate disrepute charge.
- Third. The concern that he might drive under the influence at work was baseless speculation.
- Fourth. The conversion programme should have counted in mitigation.
- Lastly. Crucially, the City was inconsistent. A more senior officer, with a higher reading, who had also resisted arrest, was reinstated at arbitration. By not challenging that award, the City showed it did not treat this misconduct as dismissible.
Considering these findings together, the Court concluded that no reasonable commissioner, on the same facts and law, would have arrived at this award. It set the award aside and retrospectively reinstated the employee. In June 2026, the Court also refused the City leave to appeal to the Labour Appeal Court.
So, is dismissal justified? Based on the
Sauls judgment, the answer is
not automatically. Dismissal for off-duty conduct can be fair, but only where the employer shows a genuine link between the conduct and its business.
Remember, this case involved a law enforcement officer, albeit a learner, where one might expect a link to be easiest to establish. Even so, the Court found none. In many other jobs, an off-duty drunk-driving arrest, without more, may not justify disciplinary action at all, let alone dismissal. The position may differ where, for example, the employee drives for a living, the conduct publicly identifies the employer, or a policy expressly regulates off-duty conduct. That said, the outcome did not turn on the missing link alone. The City’s inconsistency, and the errors in the commissioner’s reasoning, also played a significant part.
Let’s have a look at the Key Takeaways
- Job title alone is not enough. Identify, with evidence, how the conduct affects your operations or the employee’s capacity to do the job. If off-duty conduct matters for certain roles, deal with it expressly in your disciplinary code or policy.
- Be consistent. Accepting a lesser outcome in a comparable case will count against you in the next one.
- Decide each charge on its own merits, and ground aggravating factors in evidence, not speculation.
- Lastly. Give proper weight to mitigating factors, such as a completed conversion programme and the absence of a criminal record, before deciding on dismissal.
That brings us to the end of this week’s discussion.
Thank you for joining us.
I hope you have found our discussion informative.
If you have any questions or comments, we would love to hear from you – you can find us on social media, or email me at
ross@masconsulting.co.za.
Until next time – good-bye.
