Can you discipline an employee for misconduct outside of the workplace?suzette
Discipline in the workplace is always an interesting and hot topic of discussion, especially with South Africa’s ever-evolving labour legislation and case law bringing to light new angles and discourse. Perhaps a highly debated and contentious topic is that of the employer disciplining employees for acts of misconduct outside of the workplace. While employers have every right to discipline employees for misconduct in the workplace, the question remains if that can be extended to disciplining and/or dismissing an employee for offences committed outside of the workplace and outside of working hours? The answer to this question, is both “yes” and “no”, obviously depending on the merits of the case.
There are certain conditions under which an employer can discipline and dismiss an employee fairly for misconduct outside of the workplace. Employers have to take into consideration Schedule 8 of the Labour Relations Act 66 of 1995 (Code of Good Practice for Dismissal), particularly Item 7(a): “Any person who is determining whether a dismissal for misconduct is fair should consider whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace”. There have been considerable cases in South Africa where off-duty misconduct has resulted in dismissal of an employee, which the CCMA has found to be substantively fair.
Labour experts from Cliff Dekker Hofmeyer and ENSAfrica are both of the opinion that employers can take such action against an employee depending on whether the misconduct impacts on the employer and the employment relationship between the parties, as well as if the employer has a legitimate interest in such conduct of the employee. The employer has to be in a position to demonstrate that the acts committed by the employee amounting to misconduct are linked to the employer’s business or the workplace. This is where the “relevance of the workplace” in the LRA becomes relevant.
If an employee’s actions outside the workplace results in a criminal offence, the employer cannot immediately dismiss an employee. As the employer, you would have to consider if there is a link between the employee’s actions and the employment relationship, and if the employer’s reputation has been or could be significantly damaged due to the actions of the employee. Another aspect to consider would be that of the trust relationship. Has the misconduct, or dishonesty for example, been so gross that there is now a significant break in the trust relationship that will impede the employment relationship in the future?
Demonstrating a link between the employee’s off-duty actions and the employer’s interests is not always as cut and dry as it may seem. Aspects to take into account would be things like the seniority of the employee within the company, their length of service, their scope, level of trust and responsibility within the company, the nature of the company and what it stands for, and most importantly, whether the employee can be identified as an employee and/or representative of the company.
If one uses the recent unrest and looting in the country as a basis for comparison, an employer may be able to take fair disciplinary action against an employee who engaged in criminal activity during this time if, for example:
- the employee was wearing employer-branded clothing or uniform;
- driving an employer-branded vehicle;
- if the person can be identified as a representative or employee of the company because they are a well-known ambassador for the company;
- the nature of the offence and how it impacts on the employee’s duties and responsibilities within the company.
Should the employee be a security guard, work in a warehouse or in a retail store and is entrusted with the stock of the employer, this may be significant grounds for the employer to take disciplinary measures against the employee.
While the extensive and widespread use of social media has made it possible for posts to become viral in minutes, an employer may not simply dismiss or discipline an employee for seeing them participating in the looting by means of a picture or video. It may be disheartening and discouraging to witness employees engage in such activities, however, one needs to remember that employees still have rights and the employer still has the responsibility to engage in fair employment practices. Each case should be handled sensitively and on merit.
Need help in dealing with disciplinary matters? Please contact Joubert & Associates can facilitate this process for you!