With looting and violence severely impacting certain parts of South Africa in June 2021, many businesses are facing great challenges on various fronts. In light of the recent civil unrest, many employers have been faced with the question as to whether they are entitled to dismiss their off-duty employees for their participation in the looting and violence.

In most instances, an employee’s conduct outside of the workplace and after working hours does not fall within the scope of the employer’s authority. However, where such conduct has an adverse impact on the business, the employer is entitled to follow fair disciplinary procedures, which may possibly lead to the dismissal of an employee.

It is evident from case law that, in specific circumstances, off-duty misconduct can constitute a valid reason for dismissal. Dismissal for off-duty misconduct is more pertinent in cases where the employee’s conduct involves gross dishonesty or corruption and where, as a result, the relationship of trust between the employer and employee is irreparable. Item 7(a) of Schedule 8 of the code of good practice stipulates that the contravention of a rule regulating conduct in the workplace, or of relevance to the workplace, can form the basis for disciplinary action.

Invariably, the question then becomes, “What constitutes conduct that is relevant to the workplace?  Our law provides us with a test to make this determination. First, there must be a nexus (a link) between the conduct that is being scrutinised, the employee’s duties, and the employer’s business or the workplace. Second, the employer must have a legitimate interest in the conduct of the employee outside of working hours. If such a nexus can be established, then the employer is entitled to subject the employee to disciplinary action for his or her misconduct.

Furthermore, our courts have ruled that a nexus between an employee’s misconduct while off duty and an employer’s business exists where the employee’s conduct has an adverse or intolerable effect on the efficiency, profitability, continuity, or reputation of the employer’s business.

Thus, in the context of an employee caught looting, the following instances could establish the aforementioned nexus and potentially entitle an employer to take disciplinary action against an employee for their off-duty misconduct:

  1. If the employee was caught looting in his or her work uniform and can therefore easily be identified as an employee of the employer;
  2. Where the employee is not in work uniform but is still identifiable as being associated with the company. For example, the employee is in management or is ‘the face of the company’;
  3. Where the nature of the employee’s misconduct has an adverse impact on the employee’s duties. For example, if the employee is in the retail sector and is therefore entrusted with the employer’s stock.

In light of the above, it is evident that employers do not enjoy an automatic right to dismiss employees who have been in caught in the act of looting or for any general off-duty misconduct by an employee. Employers are advised to properly assess and evaluate such occurrences before taking any action and speak to their legal adviser should they believe that there may be fair grounds for dismissal.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)