Employee misconduct in the workplace

A Khayelitsha police officer has been trending after being caught on camera fighting with a taxi driver in a video which has since gone viral. The police officer was subsequently arrested and charged with drunken driving and negligent driving.

Besides the criminal charges levelled against him, the police officer will most likely also be subjected to a disciplinary procedure which may result in him losing his employment.

While, it is generally agreed that once your working hours are over and you have left the work premises, whatever you choose to do is not your employer’s concern, there are circumstances where an employee can actually be dismissed for misconduct outside the workplace and after working hours.

The basic rule is that there must be a traceable connection between the employee’s misconduct and the employer’s business. If the employee’s conduct directly affects the employee’s business then a problem arises. This is the case where the employee’s conduct directly affects the company’s reputation and good name.

Once a connection is established between the employee’s misconduct and the employer’s business, the next step is to decide whether the trust relationship has broken down such that it cannot be restored. If so, then the employment relationship must end.

Some cases are easy to determine such as where an employee commits an offence outside the work premises and outside working hours but whilst wearing the company’s uniform or driving a marked company vehicle as in the case of a police officer.

There are, however, cases in which the connection is not so direct but may still result in the employee being dismissed. To clarify, there are incidents where regardless of how gross the employee’s misconduct is, there is no connection between the employee’s misconduct and the employer’s business. For example, one can be charged with assault of a random person outside work and the employer would not be able to do anything about it. However, in the same vein, if one is charged with assault of a fellow employee (perhaps a superior) outside of work, this may warrant a further investigation and may lead to dismissal.

Another good example may well be social media posts made by an employee outside of the work environment, using his or her own device and network which may still reflect badly on the employer’s business and reputation and which may consequently lead to the employee’s dismissal.

The courts in cases such as Saal v De Beers Consolidated Ltd (2000, 2 BALR 171) and Van Zyl v Dhuvha Open Cast Services (1995) 1ICJ have established some factors which can be used to determine whether the employer’s business is directly affected by the employee’s misconduct outside work. The factors include:

From the above, it is clear then that employees still need to be careful how they conduct themselves even during their own personal time.

Should you or your company find themselves involved in any similar situation mentioned above, please do not hesitate to contact us for assistance.