We have all heard the stories of employees entertaining an important client after hours and then having had “a few too many” or the dispute that arose at work but which escalated to violence after working hours at a spot far from the workplace.
The question that arises next is whether these employees can be disciplined as their misconduct occurred either after hours or away from the work premises. The short and simple answer is yes, however the procedure to be followed is a bit more complex.
Normally, disciplinary action against an employee is based on a breach of the employer’s disciplinary code which occurred during working hours, or on the work premises.
Employees and employers should note that there is an exception to the above rule. If an employee’s conduct affects the business’s good name and reputation, the performance of the employee in the workplace or any interpersonal relations in the workplace, the employer may take disciplinary action against such an employee even if such misconduct occurred outside the workplace or outside of normal working hours.
In situations where misconduct was committed by an employee either outside the workplace or outside of normal working hours, the employer has to show that it has an interest in the conduct of the employee outside the workplace. In other words some nexus or link must exist between the employee's conduct and the employer’s business.
Our courts have suggested that a nexus between the employee’s off-dutymisconduct and the employer's business exists where the employee’s conduct has a detrimental or intolerable effect on the efficiency, profitability or continuity of the business of the employer. The employer must prove that the misconduct affected the business negatively.
In NUM v East Rand Gold & Uranium Co Ltd (1986) 7 ILJ 739 (IC) an employee was fairly dismissed based on the fact that he assaulted a co-employee in front of other employees on their way to a local township, where transport had been provided by the employer.
In Maloka v Commission for Conciliation, Mediation and Arbitration and Others 1 the court said the following:
“The Court has also held in a variety of cases that off-duty misconduct can constitute a valid reason for dismissal. This is even more pertinent where the employee’s misconduct constituted a criminal offence, or where the employee’s behaviour involved gross dishonesty and corruption, and where the nature of such conduct was to destroy the relationship of trust between the employee and the employer.
This approach is in line with Item 7(a) of Schedule 8 of the Code of Good Practice: Dismissal, which provides that the contravention of a rule regulating conduct in the workplace or of relevance to the workplace as being capable of being the subject of disciplinary action. The test for determining relevance to the workplace is that the employer must have a legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace, and that there must be a link or nexus between the conduct complained of and the employee’s duties, the employer’s business or the workplace.”
In Dolo v Commission for Conciliation, Mediation and Arbitration and Others 2 the court said the following:
“The first principle a person who is determining whether or not a dismissal for misconduct is unfair must consider in terms of Item 7(a) of the Code of Good Practice: Dismissal is “whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace” (emphasis added). What the emphasized portion makes clear, is that misconduct outside the workplace and outside of working hours may have a bearing on an employee’s continued suitability for employment. In each instance, a multiplicity of factual considerations can determine whether the employee’s conduct outside the workplace holds implications for their continued suitability
for employment or some form of corrective discipline.”
Based on the above it is clear that our courts have allowed for employees to be disciplined for misconduct that was committed after working hours or away from the work premises so long as there is a clear link between this misconduct and the employer’s business. This is often a difficult test to prove and we would advise clients to obtain advice from a lawyer before making a decision. Employees should note that they should always behave as representatives of their employers, especially when they are within a work related environment (for example still wearing their work uniforms etc.)
Employers must always keep in mind that all disciplinary action should follow a correct procedure. In other words, there should be an investigation before the employee is charged and progressive discipline should also be followed.
Contact us today to discuss any queries or concerns you may have regarding these types of matters.
Noelene van Coller