It is generally accepted, and a recognised principle in Labour Law that during working hours and while performing duties at work, an employee is subject to the rules of the workplace and further that an employer has a right to discipline an employee for misconduct committed.
The question that often arises is whether an employer can discipline or even dismiss an employee for misconduct committed after hours and away from the workplace?
This is referred to sometimes as away-from-work misconduct or also, off-duty misconduct.
Examples are numerous: An employer learns that his employee has been arrested and convicted of domestic violence against his/her family at home, or that a senior manager was pulled over during December holiday and arrested for drunk driving. Compare, for example, an off-duty employee assaulting a next-door neighbour when nobody else witnesses it, contrasted to a similar act where the employee did this assault in a public place like a busy supermarket while wearing the company uniform bringing the company name in disrepute.
As a rule of thumb, what an employee does after work hours is of no concern to his employer. Any wrongdoing or similar acts even as far as criminal deeds have nothing to do with the business – as, in a lot of these instances, there is no misconduct against the employer.
2020 was a trying year as we all know, and with COVID-19 lockdowns and numerous employees working remotely from home, the line between physical workplace/premises and an employee’s private home became even more blurred. This remote work trend will continue deep into 2021 as our COVID-19 positive cases and hotspots continue to worsen.
The guiding principle here is that in order for an employer to have the right to take disciplinary action for employee misconduct outside the workplace, the employer will have to show how the wrongdoing is relevant to the business. This is called a nexus. Labour Courts in South Africa require that a nexus or link between the employee’s off-duty misconduct and the employer’s business exists. Courts have found that such a link exists where the employee’s conduct had a detrimental or intolerable effect on the efficiency, profitability, or continuity of the business of the employer. In the absence of the aforementioned nexus/link, the employer cannot discipline the employee as it is then regarded as non-work-related conduct. The employer will have to prove that the misconduct affected the business negatively, or that the business has lost or could lose clients, or even that it could bring the company name into disrepute. The employer will have to prove it has a legitimate interest in the matter.
Examples of South African case law on this topic include a gold miner arrested for rape and assault dismissed by his employer where the employer (De Beers) claimed that it had a direct interest in the well-being of the mine village residents. Another case heard was where an employee was dismissed for intoxication, insubordination and verbally abusing the employer in-front of other employees outside the workplace.
Sound reasoning and common-logic will, in most instances, be a good guide whether off-premises/after-hours misconduct will be subject to employer disciplinary action. If a brick-layer in the building industry commits tax fraud, it is of no interest to the employer but if the same personal tax fraud is committed by a senior financial director/bookkeeper of a large corporation where trustworthiness and the trust relationship between employer and employee are affected detrimentally, that a whole different kettle of fish.
SEESA advise that in these matters employers obtain comprehensive legal advice from your SEESA legal advisor before embarking on any disciplinary action of this nature.
About The Author
Charl Fourie is a Senior Legal Advisor at SEESA for Labour, Consumer Protection & POPI. He obtained his LLB degree and is an admitted attorney in the High Court of South Africa. Prior to joining SEESA he practiced as an attorney specialising in Criminal and Civil litigation.
Sources for this article/recognition to authors:
- Off Duty Misconduct: to discipline or not to discipline, The South African Labour Guide, Karen Fulton & Eva Mudely, www.labourguide.co.za;
- Employee Misconduct outside the workplace: legal principles and rights involved, Dec 16, 2016, Abrahams & Gross Attorneys;
- Misconduct outside work tricky to deal with, Ivan Israelstam, The South African Labour Guide, www.labourguide.co.za.