1 December of each year officially marks the commencement of “the festive season” or, as some like to say, “the season to be jolly”. The festive season is often characterised by overspending and excessive consumption, fuelling New Year’s resolutions including self-made promises to either join a gym or utilise an existing membership more frequently than the preceding year.
For those revellers who are yet to adopt a dogmatic approach to e-hailing to accommodate their transport needs, the festive season undoubtedly raises the risk of the dreaded onset of flashing blue lights whilst situated behind the wheel. Whilst the prospect of an arrest and possible prosecution seems daunting enough, what of the additional concern of possibly losing one’s job as a result of the arrest? Can this happen? If so, what are the guiding principles in terms of South African employment law?
The power to discipline employees flows from the contract of employment. This power is generally limited to the manner in which employees conduct themselves within a workplace qua employees. What happens outside of the workplace and in the private lives of such persons is generally speaking of no consequence to an employer.
But does this mean that in all instances of misconduct outside of the workplace, an employer is powerless in respect of such conduct? What about those instances where fellow employees may be involved or where the nature of the misconduct perpetrated outside of the workplace has a detrimental impact on the employment relationship? The test therefore for whether conduct may be regarded as work-related is the extent to which such conduct may affect the employment relationship and not whether the conduct at issue is covered by the employment contract (See Malan v Bulbring NO (2004) 25 ILJ 1737 (LC)).
By way of example, an employee who presented a fake Namibian driver’s license to the South African licensing authorities for conversion to a South African license was held to have committed an act of dishonesty (the obtaining of a driver’s license by fraudulent means) justifying the termination of the employment relationship nine years later upon the employer discovering the misconduct.
The Labour Court held that the issue was the effect of the employee’s dishonest conduct on the employment relationship, of which mutual trust is an essential element in both the private and public sectors (See City of Cape Town v SALGBC (2011) 32 ILJ 1333 (LC)).
A further example may be where an employee’s conduct committed outside of the workplace, such as an employee sexually harassing an employee of a supplier of the employer, may constitute conduct detrimental to the employer’s business and worthy of dismissal (See P and B (unreported IMSSA award dated 15 September 1993)).
In summary, employers wanting to discipline their employees for misconduct conducted outside of the workplace, have to establish not only the commission of the offence (misconduct) on a balance of probabilities, but also the extent to which such conduct is said to detrimentally affect the employment relationship.
In many instances, an offence such as driving under the influence of alcohol would not necessarily impact negatively on the employment relationship, there being no question of dishonesty or such type offenses which usually go to the heart of the employment relationship.
In those instances, however, where an employee is employed as a driver, and depending on the nature of the circumstances in which an arrest may have been made, it may be easier for an employer to draw a causal connection between the nature of the misconduct (the arrest) and the employment relationship.
In all instances, it is the employer who bears the onus of ensuring that any dismissals are both procedurally and substantively fair in accordance with the requirements of the Labour Relations Act, 1995.
Written By Gavin Stansfield, Director in the Employment practice, at Cliffe Dekker Hofmeyr