As the year comes to an end and everyone is in a festive spirit, employers and employees are often under the misimpression that no action can be taken against an employee who commits misconduct outside of normal working hours.
This is not the case. Should an employee’s conduct outside of the workplace and normal working hours adversely impact the employer, the employee could still be disciplined for such conduct.
In the matter of Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another (1993 14 ILJ 1449 (LAC), the court held that the fact that misconduct occurs away from the workplace and outside of working hours does not necessarily preclude an employer from disciplining an employee, provided that there is a link between the employees conduct and the employer’s business.
In Edcon Limited v Cantamessa and Others (2020) 2 BLLR 186 (LC) an employee was dismissed for posting a racist remark on Facebook on 20 December 2015 while on annual leave.
On 12 January 2016 Edcon received a complaint via email which read as follows: “I would like to bring to your attention the attached post by an Edcon employee on social media. In light of recent occurrences in our country, I felt it my duty to act on Ms Cantamessa’s post. Her bio indicates that she works for Edcon and therefore, I associated her social media with the organisation. Please advise on what transpires from this email”.
As a result, Edcon suspended the employee and subjected her to a disciplinary hearing where the employee was found guilty and dismissed. The employee referred a dispute to the CCMA, where the Commissioner found that the dismissal of the employee was substantively unfair. The Commissioner held that the employee’s social media post did not pertain to her work or to Edcon, that the employee was on annual leave and not at work when she posted on her social media account and that Edcon had failed to show that it suffered any financial loss because of the employee’s conduct.
Edcon took the CCMA’s decision on review to the Labour Court where it was held that the employee’s post could be linked to the Company because she identified herself as an employee. The court further held that the comment had exposed the Company to reputational harm and that the CCMA Commissioner had failed to consider that the employee was not charged with causing financial loss. It was therefore held that the CCMA commissioner failed to consider all the evidence before him, the CCMA award was set aside, and the dismissal was found to be substantively fair.
An employee may therefore be disciplined for misconduct outside of the workplace and normal hours if the conduct has a negative impact on the business of the employer and negatively affects the working relationship between the employer and employee.
Article by: Ruaan Heunis
Dispute Resolution Official – East London