Employers and employees are often under the impression that if an employee misbehaves or commits misconduct outside work context and outside the workplace, that no action may be taken against them.
An employer is allowed to intervene in an employee’s private relationships if it affects the employer’s business, even in the case where the employee commits an offence off-duty. This means that an employer is allowed to take disciplinary action against an employee who commits an offence while off-duty (after working hours).
Examples of off-duty misconduct:
- An employee is arrested after being involved in a drunken brawl after work.
- An employee gets into a fight while off-duty and injures himself in the process, causing him to take sick leave.
- An employee sexually harasses a colleague at a work function, after working hours.
The test: sufficient nexus
The employer can take disciplinary action against an employee who has committed an offence while off-duty if the employer can prove that there is a sufficient link/nexus between the employee’s conduct and the employer’s business.
The employer must establish that the employee’s non-work related conduct had a detrimental or intolerable effect on the efficiency, profitability and continuity of the business. In determining whether the off duty conduct actually had a detrimental impact on the employer’s business, the employer should be practical and objective. The impact must be real and severe – it cannot be speculative or trivial.
Examples where an employee’s conduct may have a detrimental effect on an
- A feud between employees causes incompatibility in the workplace.
- An employee demonstrates unruly behaviour at a company function or at a meeting where he is representing the employer.
- While on leave, an employee shoots two people and admits to doing so. This criminal act puts strain on the trust relationship between the employer and employee.
- Misconduct on social media i.e. social media posts.
To find out how much of a connection there is between the misconduct and the business, the employer needs to consider the following:
- The employee’s specific job duties and responsibilities.
- The employee’s history with the company.
- The nature of the employer’s business.
- The effect on the customers, the co-workers, and the business reputation and sales.
- The seriousness and notoriety of the allegations.
If there is a sufficient nexus between the job and the allegations, disciplinary action may be justified.
Where an employee’s misconduct occurs off an employer’s premises but impacts on the workplace, the employer is entitled to take disciplinary action against the employee. In these circumstances the employer has to establish that it has a legitimate interest in the matter – for example, the misconduct is disruptive to the employer’s business or affects the employer’s reputation.
In order to determine whether dismissal would be justifiable, the following factors should be considered:
- The nature of the misconduct
- The nature of the work performed by the employee
- The employer’s size
- The employer’s position in the marketplace and its profile therein.
- The nature of the work or service performed by the employer.
- The relationship between the employer and the victim.
- The impact of the misconduct on the workforce
- The capacity of the employee to perform their job.
ABOUT THE AUTHOR
Lizca Samuels obtained her B.proc. LLB degree from the University of Port Elizabeth. She completed her articles with Dietrich Attorneys and was admitted as an attorney in 2003. She joined SEESA Labour as a legal advisor in 2005 and is currently a SEESA Labour Senior Legal Advisor.