Occasionally an employer is troubled with an employee’s misconduct before or after working hours, and in some instances for misconduct conducted even before the employer-employee relationship is in existence. What recourse does an employer have in such instances against such employees?
Normally, disciplinary action against an employee derives from the contract of employment, which in essence results that action can be taken if there is a breach of the contract of employment. Thus, as a general rule, the employer cannot dictate the conduct of the employee outside of working hours. However, the exception to the rule is that if the employee’s conduct affects the business’s good name and reputation, the performance of the employee in the workplace or any interpersonal relations in the workplace, the employer may take disciplinary action based on rigid principles.
How to determine whether disciplinary action would be just and fair
The employer must first establish that the misconduct outside the workplace has a sufficient and legitimate interest in the employer’s business and that it affects the employment relationship detrimentally. Arbitrators and courts have established that there needs to be some kind of connection between the employee’s conduct and the employer’s legitimate interest.
If there is a connection as described above, the employer then has a further onus on them to prove that the employment relationship has broken down beyond possible reconciliation, where dismissal will then be regarded as the appropriate sanction.
Case Law examples on misconduct before or after working hours
In NUM v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ 739 (IC) an employee was fairly dismissed based on the fact that he assaulted a co-employee, in front of other employees on their way to a local township, where transport has been provided by the employer.
In Dolo v CCMA & Others (2011) 32 ILJ 905 (LC) an employee (casino table supervisor) was dismissed for fraud when she and her boyfriend had committed fraudulent activities. She then agreed to give evidence in a criminal matter against the boyfriend for indemnity against prosecution. The employer became aware of this and she was subsequently dismissed. The Code of Good Practice on Dismissal provides that employees may be disciplined if they break rules regulating conduct in or of relevance to the workplace.
Case Law examples of misconduct before employment commenced
In the matter of City of Cape Town v SALGBC (2) (2011) 32 ILJ 1333 (LC) the employee provided a fake driver’s license from Namibia for conversion to a South African Driver’s License. 9 years later the Scorpions caught the employee, and the employee held at that time a senior position within the Municipality. The court held that the issue was the effect of the employee’s dishonesty on the employment relationship, as the employee was holding a position of mutual trust.
General principles to consider
- The reason and motive of the misconduct.
- The status of the victim in assault or insubordination matters such as superiors, clients or customers.
- Whether fellow employees or members of the public witnessed the misconduct.
- Whether the employee could be identifiable to the employer’s business due to him committing misconduct in his work uniform.
Misconduct in the above can vary from dishonesty, assault, sexual harassment, fraud etc. Thus, the main principle is to determine the connection between the misconduct and the employer’s business. Thereafter, the employer has to prove to which extent it has affected the employment trust relationship.
Employee X attends a work function after work hours, which does not form part of the work premises. Employee Y enters the premises with a friend Z, whom employee X cannot tolerate. Employee X gets frustrated by a comment made by Z, and punches him in the face. The following day Employee X is being charged with assault. By applying the above factors, the employer sufficiently proved the connection, and further proved that there is a detrimental effect on his business as 3 of the major sponsors, which were present at the function subsequently, withdrew their sponsorships to the business.
As seen above if an employee commits any misconduct outside the workplace after working hours, the test is whether the employee’s conduct adversely affected the employment relationship. The position held by the employee will also be regarded as an important factor to dismiss an employee for misconduct outside the workplace, even if the misconduct was committed before the existence of an employer-employee relationship.
ABOUT THE AUTHOR
Frikkie du Plessis obtained his BCom Law degree in 2013 and his LLB Degree (cum laude) in 2015 at the University of Pretoria. He was admitted as an attorney in February 2017 and has been employed as a Labour legal advisor for SEESA Head Office from May 2018.