Employers have the right to discipline and even dismiss employees for misconduct that occurs outside of the workplace if it can be shown 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.
The Labour Appeal Court confirmed this aspect where an employee assaulted a co-employee outside of working hours and outside the work environment in the recent case of Horn v Beesnaar NO & others (2022) 43 ILJ 115 (LAC).
In summary, the employee witnessed the reckless driving of Mr Molokwane, a co-employee, on a public road leading to the mine. On his arrival at the mine gate, the employee reported the matter to security and Mr Molokwane was stopped at the mine entrance. The employee was angered by Mr Molokwane’s conduct and went over to his vehicle to confront him. Mr Molokwane did not exit his vehicle while the employee took issue with the serious traffic violation he had committed at speed in a manner that had endangered the lives of a number of people in both his own and the employee’s vehicle.
While the employee confronted Mr Molokwane, Mr Lekhula, also a co-employee, stopped his vehicle and walked over to the employee. An argument ensued between the employee and Mr Lekhula, during the course of which Mr Lekhula pointed a finger at the employee. Mr Potgieter, the security manager on duty, intervened physically to separate the employee and Mr Lekhula on two occasions before the employee pushed Mr Lekhula on his chest, and he fell to the ground. Following an investigation into the incident, the employee was dismissed for assault after a disciplinary hearing.
In the arbitration award, the Commissioner found that if the employee did not push so hard, Mr Lekhula would not have fallen in the manner he did. Although the employee had been provoked and “had every reason to be upset and to respond in the manner he did”, he had a choice, given his knowledge of his medical condition and his seniority, to leave the scene and “not to entertain the verbal assault of Mr Lekhula” yet failed to do so. As a result, the assault of Mr Lekhula was of such a nature that, with reference to De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration & others, the dismissal of the employee amounted to “a sensible operational response to risk management” and was both procedurally and substantively fair.
In the Labour Appeal Court, the judge held as follows:
“Item 7(a) of Schedule 8 to the Labour Relations Act 66 of 1995 (the LRA) provides a guideline for the treatment of misconduct, in, or of relevance to, the workplace”. In Hoechst (Pty) Ltd v Chemical Workers Industrial Union & another, it was made clear that an employer is not necessarily precluded from disciplining an employee’s misconduct that occurs away from the workplace, but that the decision to discipline is subject to a factual enquiry.
“This enquiry would include but would not be limited to the nature of the misconduct, the nature of the work performed by the employee, the employer’s size, the nature and size of the employer’s workforce, the position which the employer occupies in the market place and its profile therein, the nature of the work or services performed by the employer, the relationship between the employee and the victim, the impact of the misconduct on the workforce as a whole, as well as on the relationship between employer and employee and the capacity of the employee to perform his job. At the end of the enquiry, what would have to be determined is if the employee’s misconduct “had the effect of destroying, or of seriously damaging, the relationship of employer and employee between the parties”.
The Commissioner’s finding that the dismissal was fair did not fall outside the reasonableness ambit required. Therefore, the Labour Court cannot be faulted for arriving at the decision it did. The appeal cannot therefore succeed.”
Careful consideration should be given, considering all the relevant factors of the seriousness of the misconduct and the impact on the employment relationship before dismissing an employee who commits misconduct outside the workplace.
Article by: Anesta Kruger
Dispute Resolution Official – Durban