Oct 27, 2022

When May An Employee’s Off-Duty Conduct Lead To Disciplinary Action?

While employees are generally free to do what they want after working hours, an employee may face disciplinary action if his conduct has a negative impact on the employer’s business.

An employer will have the right to discipline an employee for off-duty conduct when he can prove a link between the employee’s actions after hours on the one hand and the workplace or the employer itself on the other. Therefore, the employer must prove that he has a legitimate interest in the employee’s actions after hours before he can consider taking disciplinary action. A good illustration would be where an employee’s misconduct disrupts the employer’s business or has an unfavourable effect on the employer’s good name.

In EDCON Limited v Cantamessa and Others (JR30/17) [2019] ZALCJHB 273 (11 October 2019), Ms Cantamessa was dismissed following a disciplinary hearing after she posted racist slurs on her Facebook page during her annual leave in December 2015. She referred the matter to the CCMA, where the arbitrator ruled her dismissal substantively unfair. According to the arbitrator, reasonable social media users would not have made a connection between Ms Cantamessa’s post and her employment simply because her Facebook profile indicated that she was employed at the Edcon Group.

However, the Labour Court reasoned that this indication was, in fact, a sufficient link between Ms Cantamessa’s actions and her employment relationship with Edcon. The employer’s success relied heavily on its public reputation, and Ms Cantamessa’s actions clearly exposed Edcon to reputational damage. Considering South Africa’s apartheid history and the negative overtone of the particular slur Ms Cantamessa used, Edcon had the right to take disciplinary measures against her to protect their good name from being tarnished.

The above Labour Court matter sets a good precedent that employers may use to consider dismissal of their employees for off-duty misconduct reasonably.  It must, however, be noted that employers do not have an automatic right to do so, that the accused employee must be subjected to a procedurally and substantively fair disciplinary process and that each case will be determined on its own merits. 

Besides the above, it is of utmost importance that employers incorporate all relevant policies and rules within their disciplinary framework to ensure that employees are aware of workplace-specific regulations.  Disciplinary action, or perhaps even dismissal, will be fair if the employer can prove the following essential elements as prescribed by Item 7 of the Code of Good Practice:

  • Whether the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace;
  • Whether that rule was valid, reasonable or standard;
  • Whether the employee was aware or should have been reasonably aware of the rule or standard;
  • Whether the rule or standard has been consistently applied by the employer;
  • Whether the dismissal was the most appropriate sanction for contravention of the rule or standard.

As mentioned before, each case will depend on its own merits, and other factors will also be taken into account to determine if disciplinary action can be taken:

  • The nature of the employee’s duties;
  • The size of the company;
  • The nature and size of the workforce;
  • The employer’s position within the marketplace or public eye;
  • The relationship between the employer and a possible victim;
  • The capacity of the employee to perform his job;
  • Whether the employee occupies a position of trust within the workplace and the influence of the employee in executing his duties.

It should be clear by now that taking disciplinary action against an employee for off-duty conduct is not an easy task.  There are several factors to consider, especially if you would prefer that the employee be dismissed for his off-duty conduct. 

Need assistance with misconduct in the workplace? Contact your nearest SEESA Labour Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.

About The Author:

Wanika Brӧnn started her career at SEESA in September 2022. She is currently a Labour Legal Advisor at SEESA Head Office. She is an admitted attorney who obtained her LLB degree in 2018.

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