We are often faced with a situation where an employee commits misconduct outside working hours and an employer wonders if they are allowed to take disciplinary action against such employee.
Whether employers may take disciplinary action depends on if the employer can show a connection/link between the employee’s conduct and the employer’s business, and whether the conduct affected the business or its reputation negatively.
What would this look like in practice?
Common conduct that would affect the employer’s business or reputation negatively is when, for example, a security guard dressed in company uniform is seen being under the influence of alcohol. Similarly, where an employee drive recklessly in a clearly marked company vehicle. These employees are associated with their employer and have a negative effect on the business of the employer.
As a further example, an employee who assaulted his wife and was arrested is not off-duty misconduct and as such, this conduct has no effect on the business of the employer. However, there may be a link/connection when an employee assaults a fellow employee to such a point that the assaulted employee cannot perform his duties for a period of time and such employee is in a key position in the company.
Employers also face difficulty when an employee is arrested for, for example, murder or rape and has not been granted bail or sentenced to jail for a lengthy period. In such instances it is not the conduct committed by the employee that is of concern, but rather the length of absence from the workplace by the employee. What is an employer to do in such instance? Should the employee be treated as having deserted the workplace?
The employer may dismiss an employee for desertion if it can be proven that the employee has the intention of not returning. Dismissal based on desertion while knowing the employee is in jail, is at risk of a finding of unfair dismissal. Dismissal for Absence Without Official Leave (‘AWOL’) is theoretically possible, through procedurally it would be difficult to have a disciplinary hearing with an imprisoned.
Incapacity should also be considered – terminating the employee’s services on the basis of incapacity, as the employee is incapable of performing his duties? According to Section 188 of the Labour Relations Act of 1995, the employee’s services may be terminated due to incapacity. To proceed with such dismissal, an employer must follow a fair procedure, such as giving the employee an opportunity to provide reasonable grounds to retain his employment. This may be done through discussions with the employee in jail or via correspondence.
In order to proceed with such dismissal, the employer must consider various factors such as the length of absence, the employee’s position, the needs of the employer’s business, etc.
If there is no link/connection between the conduct of the employee and the employer’s business, an employer cannot take disciplinary action against an employee for off-duty misconduct. It is therefore very important for an employer to first establish if there is a link/connection or negative impact on their business before proceeding with disciplinary action or dismissal.
ABOUT THE AUTHOR
Yolande Iversen obtained her LLB Law Degree from the Nelson Mandela Metropolitan University in 2011. She embarked on her journey at SEESA Labour in August 2011 as a legal assistant. She was promoted to the position of SEESA Labour Legal Advisor in 2014.