It is that time of the year when employers start planning for the company’s Year-End Function. Unfortunately, you will always have that small group of employees who consume too much alcohol and gather enough courage to air their grievances with management or colleagues. These confrontations often end in physical fights or verbal abuse in plain sight of other employees or members of the public.
Employers and employees are often under the impression that if an employee misbehaves outside normal work hours, no action can be taken against him or her.
This is not true. Employees may be disciplined if the conduct has a negative impact on:
- The business of the employer
- The working relationship between staff members
- The working relationship between the employer and employee
- The continued service rendered by the employee
The employer shall be entitled to take disciplinary action against the employee and, in serious cases, even dismiss such employee.
The employer arranged their Year End Function at a popular restaurant in town. Meals and liquor are on the house. They attend the function after hours, dressed in identifiable corporate attire. A major section of the restaurant is reserved for the function, but there are also numerous regular clients present in the restaurant. One of the employees become intoxicated and confronts his manager about him giving him an unfavourable performance bonus appraisal, which led to him not getting a bonus. The confrontation ends up in a swearing match and a brawl. Other clients present are shocked by the conduct of the employees involved and the next day, the incident features on the front page of the local newspaper with photographs and all. The whole community observes how poorly the employees of this well-known and reputable company behaved.
The employer will be able to discipline these employees and may probably dismiss them because their conduct had a serious impact on the good reputation of the employer’s business, the relationship between employees and the employer as well as the continued service of the transgressors.
The employer’s next step
The Labour Court held that if the employer can demonstrate that it has some interest in the conduct of the employee, it may institute disciplinary proceedings. An interest would normally exist where some nexus exists between the employee’s conduct and the employer’ business. It has also been accepted that where employee misconduct occurs off company premises, but impacts on the workplace, the employer is entitled to take disciplinary action against the employee. The employer has to establish that it has a legitimate interest in the matter in the sense that the misconduct is disruptive to business, or affects the company’s reputation.
An assault, for instance, can have a negative impact on the business, e.g. in a case where the employees must work together very closely and, because of the assault, can no longer function effectively as a team. It could also happen that a potential client observes the assault and then decided not to do business with the relevant company any longer. The Courts have in the past found that when an employee is guilty of misconduct and this has a negative effect on the reputation of the business or influences the employee in the execution of his/her duties, or if the employee occupies a position that requires particular loyalty and the said misconduct constitutes a breach of the fiduciary relationship with the employer, this could justify dismissal of the employee.
Should employers experience employee misconduct over the festive season, their nearest SEESA Labour office can be contacted for assistance or employers can follow disciplinary procedures through ProFile that will guide them in implementing each step with procedural fairness.