22 September 2017

As people, we like to compartmentalize our world into manageable segments. Most employees have a very clear divide between what they consider to be their working-lives as opposed to their personal-lives. But does this arbitrary divide protect them from discipline for misconduct committed outside of work? Does the employer have any right at all to interfere with what an employee does in his or her personal time? The short answer is ‘yes’ but the long answer is the one this article will examine.

The kind of misconduct the employer is most likely to become aware of is the kind connected in some way with the employer’s interests. So, for example, the owner of the hotel the company habitually uses might complain to the employer about the unacceptable behaviour of one of its employees who is staying there. Or an employee, who became inebriated after hours, might verbally abuse his superior in a setting outside of work. These are offences that might occur outside of working hours, off company premises and out of uniform.

Can the employer act?

“As a general rule an employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some interest in the conduct of the employee. An interest would normally exist where some nexus exists between the employee’s conduct and the employer’s business. In the absence of such nexus, the employee’s conduct is likely to be non work-related conduct […].” (PAK le Roux & A van Niekerk The SA Law of Unfair Dismissal (1994) at p.184)

This makes sense. When applying discipline, an employer acts to protect its own interests. Thus, an employer has to establish a causal nexus between the employee’s conduct and a negative effect on the interests of the business.

A ‘negative effect’ has to be demonstrably detrimental or disruptive to employee relations, the company’s reputation or its business. Take the above hotel-example. Certainly, had the employee been swinging from the hotel’s chandeliers, this would be detrimental to the reputation of the company – but only insofar as hotel management is concerned (assuming the incident did not also appear on Youtube). If this also results in the employer losing its preferred client rating with the hotel and having to pay more for future bookings, it also affects the company’s business. Similarly, in the above verbal abuse-example, relations would become strained between the employee and his superior (not to mention any colleagues who became aware of the incident) – thereby negatively affecting employee relations. In either event, this would be cause for discipline.

There is some overlap between these kinds of offences and cases where there has been criminal misconduct outside of work. (However, for the purposes of this article, the latter should not be confused with the predicament where it becomes impossible for an employee to render service due to being imprisoned.)

In the matter under discussion here, the test remains consistent: has the employee’s criminal misconduct detrimentally affected the company’s interests? Now, instead of having to prove that the employee was swinging on chandeliers, the company bears the onus to prove (on a balance of probability) that the employee committed the criminal misconduct complained of. Then to prove that same was detrimental to the company’s interests. Visser v Woolworths [2005] 11 BALR 1216 (CCMA) warns that the mere fact that an employee was arrested does not quit the employer’s onus in this regard.

Another challenge is posed when it becomes time for this misconduct to be described when drafting charges. As a rule, disciplinary codes are inherently geared (and worded) toward at-work offences and will not include these conducts. It then becomes the responsibility of the employer to prove that the complained of behaviour is prohibited by the company and that this is a well-known rule that has been consistently applied.

Employers are aided in this (somewhat) by paragraph 3(1) of the Code of Good Practice on Dismissals, which states that “[s]ome rules or standards may be so well established and known that it is not necessary to communicate them.” Add to this Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), which confirmed that there is a standard of ethical behaviour about which an employee does not have to be reminded of and does not have to be specified in the Code of Conduct.

In conclusion, if an employer can show that a rule has been breached by an employee’s conduct outside of work and which has had a negative impact on the company’s interests, the employer can discipline that employee.