Dealing with out-of-office misconduct

Mar 13, 2015

Can an employer dismiss an employee for out-of-office misconduct? Is dismissal justified?
The answer to that question is “Yes”.

An employee could be dismissed for misconduct outside the workplace.

However, doing so is not that straightforward.
An employee could only be dismissed if it could be shown that there is a link between the misconduct and the employer (company) or operational requirements of the employer. The employer must prove that the misconduct affected the business negatively. For example, that it brought the company’s name into disrepute and that as a result the employer has lost clients/customers. The dismissal of the employee cannot happen right away, a disciplinary hearing must held before the employee could be dismissed for misconduct.
However, dealing with misconduct outside of work is difficult. The difficult part is describing the misconduct. The challenge with outside work misconduct is framing the charges. This is because most disciplinary codes focus on at-work misconduct and do not cover misconduct outside of work. To overcome this, the employer must prove that the rule the employee broke is so obvious and well known, that there was no need to communicate it. In the case between Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), the court found that there is a standard of ethical behaviour that the employer does not need to remind employees about. If the employer could prove this, it does not matter that the offence is not in the code, the employer could discipline the employee for the misconduct.
The difficulties could be avoided if the employer follows a rule to deal with out-of-work misconduct.
It is advisable that the employer state in the disciplinary code that employees can be disciplined for external misconduct. The employer should inform employees that they are free to do as they please when they leave work, but that they must not act in a way that will negatively affect their job or the employer (company).
Therefore, the employer must prove that the employee can be dismissed for misconduct outside work as long as there is a connection between the employee’ misconduct and the employer (company).


Wallace Albertyn

Wallace Albertyn is a Senior Associate and Legal Advisor at LabourMan Consultants.

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