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Many employees do everything in their power to comply with company values, culture, and policies while in the premises of the employer or on business trips. However, when away from work or in their personal space, they enjoy the freedom and behave in manners befitting to their personality, culture and belief system forgetting that their work and personal lives must coexist harmoniously. They think that company rules are not applicable when they are away from their workplace and believe that there would be no consequence for their conduct even if contrary to employer’s value system. This is far from the truth as what you do in your personal and public space is as important as what you do at your workplace. The truth is that South African Labour Law permits the employers to discipline the employees for conduct outside workplace and working hours. Item 7 (a) of the Code of Good Practice Schedule 8 to the Labour Relations Act, prescribe that any person who is determining whether a dismissal for misconduct is unfair should consider- whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and if a rule or standard was contravened. The conduct can be relevant to the work of the employee even though happened after hours and away from work.
Employees must therefore be aware that their behavior away from work can still cause them to lose employment if found to be an act of misconduct. The conduct might not be included in the employer policy or code of conduct as the court held that there is a standard of ethical behaviour that the employer does not need to remind employees about. Further, the excuse that you did not know that the policy prohibits your conduct will not help you as the employees have a duty to apprise themselves with the employer’s policies.
A case in point is the Glover employee who made a comment afterhours on the Facebook that all whites should be killed. Both the CCMA and Labour Court maintained that the dismissal was correct decision although the employee claimed that the act was committed after working hours and that he did not know the social media policy. The employer charged him for racist utterances and acting contrary to the interest of the company.
Another employee was fired after she reacted to a TV programme regarding the reshuffling of Cabinet wherein, she referred to government as monkeys on the Facebook. CCMA ruled that dismissal was substantively unfair as the company social media policy only applied to employees accessing the internet through company resources and only during working hours. The employee used his personal computer and was on leave when she made this comment and court concurred that Edcon’s policies did not apply to her conduct outside of working hours and outside of the workplace. However, court did not end there as it was found that the employer may still charge employees for conduct outside of the workplace if there is connection between the employees conduct and the employer’s business. The court held that the employee’s comment could be associated to Edcon as she identified herself as an Edcon employee. The comment caused reputational harm to Edcon as the use of the word ‘monkey’ also carried racial connotation and dismissal was found to be the correct sanction.
A primary school educator was also dismissed after a raunchy video of her twerking in a bikini during holiday went viral which was not well received by the employer and the parents. The behaviour was not deemed befitting for an educator that is expected to be a role model and shape the behaviour of the children. Similarly, a medical doctor was recorded harassing two men while walking on the street which led to his dismissal although he was off duty as the conduct was deemed unprofessional and bringing the hospital in disrepute.
Although the employer can dismiss the employees for misconduct outside of the workplace, it is critical to note that the employer must prove that there is a link between the conduct and the business and that the conduct affected the business negatively. The employer must demonstrate a legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace to justify the disciplinary proceedings. Either way, employees must conduct themselves decently even when away from work noting that rights and freedom are limited and goes with responsibility. It is said that ‘elegance is like manners. You can’t be polite only on Wednesday or Thursday. If you are elegant, you should be everyday of the week. If you are not, then it’s another matter’.
John Mperekeng Teffo
PSA Labour Relations Manager
Write in his personal capacity
