Off duty misconduct The general rule is that an employer may only discipline an employee for conduct perpetuated at the workplace and during working hours. Employers have a right to maintain discipline within the workplace. What an employee does during off duty periods and outside the employer’s business is generally believed by many employees to be of no concern to the employer. The question may therefore be asked if aforesaid belief is accurate. Can an employer discipline an employee for conduct that occurred away from work and during off duty hours? The answer to the above question depends on several factors but may be answered in the affirmative. It has been held in several court judgments that an employer may discipline an employee for conduct which occurred away from the employer’s workplace and during off duty period provided the employer can show that the employee’s conduct amounted to misconduct. The employer must be able to show a nexus (link) between the employee’s conduct and the employer’s business. See Visser vs. Woolworths (2005) 26 ILJ 2550 at 2253. The nexus between the employee’s off duty conduct and the employer’s business exists where the employee’s conduct has a detrimental or intolerable effect on the employer’s business. The determination of whether the employee’s conduct committed outside the employer’s premises and perpetuated during off duty period amounts to misconduct depends on a multifaceted enquiry which includes amongst other issues the following; the nature of the misconduct, the nature of the work performed by the employee, the size of the employer’s undertaking, the position of the employee with the employer’s undertaking, the nature of the service rendered by the employer’s business, the impact of the misconduct on the work force as a whole as well as on the relationship between the employer and employee and the capacity of the employee to perform his job. See NEHAW o.b.o Barns vs. Department of Foreign Affairs (2001) 22 ILJ 1292. The most common form of off duty misconduct committed by many employees is that of drunken driving. In as much as it may be difficult to prove or show the nexus between the employees conduct and the employers business in such forms of misconduct, employees do run the risk of being disciplined by their employers for such. In more serious forms of misconduct which result in the employee being sent to prison, employers are entitled to dismiss based on the fact that the employee is no longer able to fulfil his obligations at work. See: Section 36 (h) Employment Act 1980 (as amended). Misconduct may have a bearing on the employment contract even if it was committed before the employment contract was concluded. Although there is no obligation on employees to disclose prejudicial information from their past to their future employers unless specifically asked to do so. See: Thulisile Mngometulu vs. Swaziland Fruit Canners (Pty)Ltd IC case no. 496/09 Employees have an overall general obligation to refrain from committing any form of misconduct. The overall analysis of whether misconduct committed off duty will warrant disciplinary action by an employer depends purely on whether the employee’s conduct had the effect of seriously damaging the relationship of employer and employee. Whether or not the misconduct has the effect of damaging the employer and employee relation depends of the factors mentioned herein above. WRITTEN BY: COMMISSIONER NSINDISO THWALA
Posted on: Thu, 26 Sep 2013 07:34:28 +0000
Recently Viewed Topics
© 2015