Employers have the right under the Labour Relations Act (LRA) to discipline and even to dismiss employees for work-related misconduct. However, dismissal is very seldom a simple process.
For a dismissal to be upheld, the employer has to properly follow a stringent, complex and time-consuming disciplinary procedure laid down by labour law The employer also needs to prove, on balance of probability, that it had the right to dismiss the employee in the light of the facts of the case.
The situation becomes even more complex when an employer aims to discipline or dismiss an employee for misconduct outside the workplace.
An employee can only be dismissed if it can be shown that there is a link between the misconduct and the employer (company) or operational requirements of the employer, says LabourMan Consultants.
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 or customers.
However, the employer will not be entitled to dismiss an employee for conduct that has nothing to do with the employer, says Ivan van Israelstam, Chief Executive of Labour Law Management Consulting.
“For example,” Van Israelstam explains, “the employer may not normally dismiss an employee who neglects his or her children or assaults a fellow nightclub visitor. But what if the employee was wearing his or her workplace uniform at the time of the assault? The employer may then be able to make out a case of bringing the name of the employer into disrepute.”
Thus, even though the misconduct occurred outside the workplace it can still occur within the context of the work relationship. And, if it does, the employer may, in certain circumstances, still have the right to discipline the employee.
The dismissal of the employee cannot happen right away, a disciplinary hearing must be held before the employee could be dismissed for misconduct.
Every case taken to CCMA or bargaining council will potentially have a different outcome because circumstances differ, as do the viewpoints of different arbitrators, Van Israelstam explains.
“It is therefore very important for employers, before dismissing employees for off-site misconduct, to get the case analysed by a labour law expert in order to check whether dismissal will be acceptable or not.”
Source: regsdienste.solidariteit.co.za | By Anja van den Berg