“Can I dismiss an employee who took part in the recent looting?” is a question that many employers have asked since the violent civil unrest, which gripped the country of late.
For the most part, an employee’s conduct outside of their workplace and ordinary work hours is not subject to the control or authority of their employer. Ordinarily, facing disciplinary proceedings for one’s after-hours actions would not be considered “substantively fair”. Even arrest or criminal activity by an employee does not give an employer the automatic right of dismissal.
This being said, the courts have held that misconduct outside of working hours may be a valid ground for disciplinary action, or even dismissal, in certain circumstances. In some cases, there is a sufficient link or nexus between the employee’s conduct on the one hand and the business interests or workplace of the employer on the other. The employer must thus have a real and sufficient interest in their employee’s after-hours conduct.
Such a link has been recognised to exist where the misconduct negatively impacts the efficiency, profitability and continuity of their employer’s business [Saaiman & Another v De Beers Consolidated Mines (Finsch Mine) 16 Indus. L.J. (Juta) 1551 (1995)].
For example, a sufficient nexus would exist where an employee:-
- is seen engaging in misconduct, such as looting, whilst bearing an identifiable mark or uniform of their employer.
- is considered the “face of the business” and is easily recognisable as an employee of the business, such as sales and management personnel.
– as this would negatively impact the public perception of the employer’s business.
Also, a connection would exist, and the employer would have a legitimate interest in the employee’s conduct where the nature of the employee’s conduct impacts their employment duties or the operation of the business, or where the workplace standards of conduct extend beyond ordinary working hours.
This would be, for example, where the employee is in control of the business’s stock, or the employee is required to upkeep the professional image of their field of employment. The employer would be justified in dismissing such an employee for engaging in misconduct outside of working hours, particularly for being involved in civil unrest or participating in looting, as the trust relationship will be broken down.
In this regard, item 7(a) of Schedule 8 of the Code of Good Practice: Dismissal, states:
“… Any person who is determining whether a dismissal for misconduct is unfair should consider—
- whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace”.
Considering the above, an employee can be disciplined and/or dismissed for misconduct outside of the workplace and ordinary working hours. However, various factors must be considered before commencing disciplinary proceedings against an employee involved in such misconduct.