OFF-DUTY MISCONDUCT

While workplace misconduct is relatively straightforward to address, misconduct occurring outside the workplace presents a more nuanced challenge. Employers often grapple with whether they can discipline or dismiss employees for conduct that occurs beyond the boundaries of the workplace. The answer lies in establishing a legally recognised nexus between the misconduct and the employment relationship.

The Nexus Principle

South African courts, including the Labour Appeal Court, have consistently held that for off-duty misconduct to warrant disciplinary action, there must be a demonstrable link—or “nexus”—between the employee’s conduct and the employer’s business interests.

Employers may take disciplinary action for off-premises misconduct if they can prove that:

• The conduct negatively affects the employer’s reputation or operational efficiency.

• The misconduct involves other employees or occurs in a work-related context (e.g. at a company event or in company uniform).

• The employee’s actions undermine trust, safety, or the employment relationship.

Consider the difference between an off-duty employee assaulting a next-door neighbour when nobody else witnesses it in comparison to a similar act where the employee did this assault in a public place like a busy supermarket while wearing the company uniform, bringing the company name into disrepute.

The recent Coldplay concert controversy, where a CEO and senior HR executive were filmed in an extramarital moment on the “kiss-cam”, quickly made headlines for all the wrong reasons and drew their employer into the spotlight. While the conduct itself occurred outside the workplace, it had a direct impact on the company’s reputation and public perception.

Supporting Case Law

This principle has been affirmed in cases such as:

Saal v De Beers Consolidated Mines Ltd (2000, 2 BALR 171): The CCMA upheld dismissal for assault committed in a mine village, even though it occurred outside working hours. The proximity to the employer’s premises and the impact on workplace harmony were key considerations.

Horn v Beesnaar NO & Others: The Labour Appeal Court found that an off-duty assault between co-workers near the workplace gate had sufficient relevance to the employment relationship to justify dismissal.

Edcon Limited v. Teresa Cantamessa and Others: The Labour Court upheld the dismissal of an employee who was dismissed for making a racially offensive comment on Facebook during her leave. Her post, which identified her as an Edcon employee, resulted in public backlash and reputational risks for the company. The Court highlighted that, while employees have the right to freedom of expression, this right does not extend to hate speech or conduct that incites harm and in this instance the employee’s actions irreparably damaged the trust essential to her employment relationship.

Not all Off-duty Misconduct is Actionable

As a rule of thumb, what an employee does after work hours is of no concern to her employer and therefore not all off-duty misconduct is actionable. Employers cannot discipline employees for conduct that is purely private and unrelated to the business. For instance: domestic disputes, criminal charges unrelated to work, or social behaviour that does not affect the employer’s reputation or operations.

In such cases, disciplinary action may be deemed substantively unfair if the employer fails to establish a legitimate interest in the matter.

In conclusion, for an employer to have the right to take disciplinary action for employee misconduct outside the workplace, the employer will have to show how the wrongdoing is relevant to the business by establishing a nexus showing that there is a link between the misconduct and the employer, its operational requirements, and where it occurred within the context of the working relationship.

As always, the principle of fairness governs all disciplinary action in the context of South African Labour Law and proper processes should always be followed.