Employees by Day, Hooligans by Night

The scenes of looting and violence in both Kwa-Zulu Natal and Gauteng went on unabated for a few days during July 2021.

Written By of Cowan-Harper-Madikizela Attorneys

Countless looters engaged in the egregious act of destroying businesses, with the South African Police Service (‘SAPS’) rendered inept to deal with the task of curbing the looting until the deployment of the National Defence Force. Conveniently some looters travelled in their motor vehicles to engage in the looting of property.

The question however that arises is what implications such criminal conduct has on the employment relationship, which is founded on trust. It is often assumed that an employee’s conduct ‘after hours’ has no impact on his employment status and as such employers are not able to implement disciplinary action against employees who, for example, commit a criminal offence after working hours. This is not the case.

The South African Courts have repeatedly endorsed the position that an employee’s misconduct after hours could directly affect the employment relationship. Item 7 (a) of Schedule 8 of the Code of Good Practice: Dismissal provides that any contravention of a rule regulating conduct in the workplace, or which has relevance to the workplace, is misconduct and is capable of being subject to a disciplinary hearing.

The test for relevance to the workplace is as follows: –

  1. There must be a link or nexus between the conduct complained of and the employee’s duties, the employer’s business and the workplace; and
  2. The employer must have a sufficient and legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace.

Accordingly, should the employer be successful in marrying the two-step test, then the employer is entitled to take disciplinary action against any employee for off duty misconduct.

A controversial point of contention is how does an employer establish the nexus. Our Courts have found that where the employees off duty conduct can be detrimental or impact negatively on the good name, reputation, profitability and continuation of the employer’s business, a nexus has been established. Examples of such instances are where: –

  • the employee is identifiable by way of the employer’s uniform or regalia;
  • the employee can be closely associated with the employer’s business. This is most common with employee’s who may be ambassadors or ‘the face’ of the employer’s business; and
  • the nature of the misconduct impacts negatively on the employee’s duties or the daily operations of the business and consequently hinders the trust relationship in the workplace.

In the recent case of Edcon v Cantamessa (2020) 41 ILJ 195 (LC), the Labour Court found that the fact that the misconduct occurred away from the workplace does not necessarily preclude the employer from disciplining an employee in respect thereof. Furthermore, the Court lamented that an employer must establish that it has a legitimate interest in the misconduct or the consequences thereof and that the employment relationship has been adversely affected, in order to take disciplinary action against an employee for misconduct outside the workplace.

In conclusion, it has also been argued amongst legal practitioners that the looting of the property of others can also be categorised as an act of dishonesty. This notion is supported in the case of Nedcor Bank Ltd v Frank & Others (2002) 23 ILJ 1243 (LAC), where the Labour Appeal Court held that dishonesty entails a lack of integrity or straightforwardness and in particular, a willingness to steal, cheat, lie or act fraudulently. Therefore, arguably, employers may charge employees with dishonesty when engaging in such conduct outside of the workplace.

Employees should thus act ethically and ensure that they at all times act in the best interest of the employer, irrespective of whether they are at the workplace. It is also advisable that employers should reflect the aforementioned position in their policies and procedures as this could strengthen their position in disputes.

Tanya Mulligan

Tanya Mulligan
Executive in Employment

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