Employers often find themselves in a difficult situation where an employee committed a criminal offence outside the workplace.
It is important for the employer to know when he/she can institute disciplinary proceedings against the employee in such instances.
Firstly, it is essential to know that if the employee commits an offence when he/she is not on duty the employee may still be associated with the employer’s company when the employee is wearing his issued uniform or the employee is driving a company vehicle.
In circumstances where an employee commits an offence while he/she is off duty, the employer can only institute disciplinary proceedings against the employee when the employer can prove the link between the offence and the company or the operational requirements of the company.
In the case of Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another (1993) 14 ILJ 1449 (LAC) the Labour Appeal Court held that even though the misconduct does not fall within the disciplinary code, the employer may still be entitled to institute disciplinary proceedings against an employee as a result of the nature of the misconduct committed. The Court also set out factors which ought to be considered when a disciplinary hearing is held for an employee who committed a transgression outside the workplace.
The factors include but are not limited to:
• The nature of the misconduct;
• What the employee’s job entails;
• The nature of the employers work;
• The trust relationship between the employer and the employee; and
• The capacity of the employee to perform his/her job.
In Dolo v Commission for Conciliation, Mediation and Arbitration and Others (JR 1655/07) [2010], it was established that the employees could be held liable for the actions of his/her partner or spouse if the actions have an impact on the employees work. The Court established a multi-faceted factual enquiry which includes factors to be considered.
The Labour Court in EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 concluded that the employees’ dismissal was fair after posting a racial remark on Facebook, while she was on annual leave. The Court found that the employee was directly linked to the company of the employer as her Facebook profile stated that she worked for the employer, therefore the dismissal was fair.
Therefore, a disciplinary hearing can be held for an employee for the criminal actions of an employee when he/she is off duty, has a direct impact on the employer’s company/business taking into account the factors as listed above.
Employers should always consider the above mentioned when instituting disciplinary procedures against employees for offences committed after hours.
Contact your nearest SEESA office for guidance on criminal actions of employees after hours, alternatively leave your contact details on our website.
About The Author:
Azel Ferreira obtained her LL.B degree in 2019 from the University of the Free State. She did her internship as a candidate attorney, after which she joined the SEESA team as a legal advisor in labour law and BEE.