Employers clearly have an interest in how their employees behave outside working hours if their conduct affects their work performance, the good name and reputation of the employer or its business dealings, or interpersonal relations in the workplace.

Misconduct outside the workplace.

Actions performed outside the workplace and working hours are prima facie considered not work-related, and accordingly beyond the reach of the employer’s disciplinary authority. The onus rests on the employer to establish that it has sufficient legitimate interest in an employee’s conduct outside the workplace or after working hours to justify disciplinary action against that employee.

There is no hard and fast principle that can be established regarding when an employee may be fairly disciplined for non-work related conduct.

Misconduct Outside Working Hours

Criminal conduct

A criminal conviction for conduct that is not work-related and does not involve another employee also justifies disciplinary action only if a connection can be established between the offence or crime and the employer’s business. Much depends on the status of the employee, the nature of the offence and the relevance of the offence to the employer’s business. Where the employee occupies a position of special trust, and the conviction undermines that trust relationship, dismissal may be justified.

Past criminal offences

The courts have upheld dismissal for prior criminal convictions only in exceptional circumstances, and only when the employee was deemed to have been obliged to disclose past convictions, either because good faith demanded disclosure, or because the employer had specifically asked the employees whether they had criminal records. But even then, past misconduct does not necessarily justify dismissal, unless the employer can prove that its interests are affected.

For further information on any labour related matters, you can contact
Bernard Reisner:
W. Tel: 021 423 3959
Fax: 021 423 2105
Cell: 082 433 3959
Email: bernard@capelabour.co.za