Labour Perspectives: Is misconduct outside the workplace punishable?

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Where does one draw the line between misconduct that is committed at the workplace during working hours and that which is committed when an employee is off-duty or away from company premises?

This is one of the most complex and difficult areas of employment relations. Generally, what an employee does in their private life is of no concern to his or her employer.

An organisation cannot exercise its disciplinary power to regulate the life of an employee outside the employment relationship.

The employer’s disciplinary authority is normally limited to employee’s misconduct in the workplace and during working hours.

In other words, the fact that an employee may be an undesirable citizen in his community or elsewhere doesn’t mean that you, as the employer, can crack the whip!

Unless it can be established that there is some nexus or connection between the employee’s misconduct and the employer’s business, the employer is precluded from acting on it.

Courts in Zimbabwe and elsewhere have held that a nexus between the employee’s off-duty misconduct and the employer’s business exists where the misconduct has a detrimental effect on the efficiency, profitability, reputation or continuity of business of the employer.

Where such connection has been established, the employer is entitled to institute disciplinary proceedings against the offending employee.

In a South African case of NUM and Others vs East Rand Gold and Uranium Company Ltd (1986), an employee assaulted a colleague on a company bus. The court decided that the assault fell within the company’s jurisdiction.

The Supreme Court of Zimbabwe has also handled a number of appeals related to off-duty misconduct. One case in point is Makwiro Platinum Mines vs Paradzayi (Judgment SC 46/2004).

An employee in a drunken stupor made a nuisance of himself in a mine compound resulting in the company dismissing him for disorderly conduct.

The court ruled that the employee’s conduct was work-related and therefore subject to the company’s code of conduct. His dismissal was upheld.

The court made a similar ruling in the case of Tanganda Tea Company vs Mvududu (Judgment SC 1/2007).

Full details of the case will not be necessary for the purposes of this article, but the core of the matter was that an off-duty garage foreman assaulted a Mozambican national who had visited company premises to seek entertainment.

It is worthy of note that in both the Makwiro Platinum and Tanganda cases, the Labour Court took a restricted view in its interpretation of work-related conduct and found the employees’ misconduct to be unconnected to their duties.

In both instances, the employers successfully appealed to the Supreme Court which took a more liberal approach to that adopted by the Labour Court. It found both employees liable for work-related misconduct and upheld their dismissals.

In an interesting Australian case of O’Keefe vs William Muir’s Pty Ltd t/a Troy Williams it was stated that due to advances in information technology, “the separation between work and home is now less pronounced that it once used to be”.

O’Keefe was dismissed for posting threatening and derogatory remarks about his employer and a female colleague on his Facebook page.

When confronted with the allegations, O’Keefe did not deny that he had made the comments and that some of his colleagues had viewed them.

He, however, defended himself arguing that it was a private matter since the insulting and objectionable comments were posted outside of work hours on a home computer.

The employer dismissed him. O’Keefe’s unfair dismissal application was thrown out by the court, which ruled that though the alleged misconduct occurred outside the workplace, it had an impact on work relationships.

Let’s look at other tricky but very common scenarios. Drinking offences quickly come to mind. Drinking in itself is not misconduct and arguably none of the employer’s business.

However, what happens if an employee goes out for lunch and comes back drunk and unable to do his or her work?

Lunch time is an employee’s own time and he does what he wants with it. If, however, the employee takes a few alcoholic drinks between working hours, that is likely to have a direct impact on the employee’s work performance and perhaps the safety of his co-workers.

In my view, disciplinary action will be appropriate under the circumstances.

Another scenario could be that of a company staff bus driver who is prohibited from driving due to a driving offence committed during his private time.

If his driver’s licence was withdrawn or cancelled he will obviously be unable to fulfil his contract. What would you do?

Do you dismiss the employee or you assign them to another job that does not require driving?

A third scenario could be that of a finance director who commits credit card fraud in his private capacity. What action would you take?

A finance director holds a position of trust. Any person in such a position is legitimately expected to refrain from conduct (both inside and outside of the workplace) that will undermine the trust placed in him or her by his employer.

Lastly, your white boss uses a racial slur on you in a nightclub on a Saturday night. Does it matter whether such a word was uttered on or off-duty?

A reasonable man is likely to take the view that such an attitude will persist in the workplace, in subtle albeit detrimental ways.

According to Professor Geoffrey Feltoe, in his book A Guide to the Zimbabwean Law of Delict, an employer can be held vicariously liable to the delicts (wrongful acts) committed by employees within the course and scope of their employment, whether this has a direct or incidental connection to the employer’s business, or whether committed outside working hours or away from the employer’s premises.

Wrongful acts such as sexual harassment, fraud, negligent driving, assault, and so on are cases in point.

The gist of all this is that if employers can be held liable by the victims of such misconduct, it should necessarily follow that the employer has the right to take action against the perpetrators.

There will inevitably be instances when individuals are involved in misconduct outside the workplace.

Regardless of when or where misconduct takes place, if there is an intersection between the conduct and the workplace, disciplinary action will be justified.

Every case will potentially have a different outcome because circumstances differ. Employers should analyse each case carefully before taking disciplinary action.

To avoid any misunderstandings, which may spill into the courts, progressive organisations set clear ground rules by reviewing relevant policies and reminding staff that behaviour outside the workplace may be injurious to their employment relationship and the reputation of business.

For example, Appendix III of the BP Oil Logistics UK Limited Disciplinary Practice and Procedure lists the factors to be considered when an offence is committed outside the workplace.

These include the nature of the offence; the ability of the employee to fulfil his/her contract of employment; the erosion of the confidence and trust between the employee and the company and any public detrimental effect on the reputation of the company.

Isaac Mazanhi is a labour analyst
writing in his own capacity.

2 COMMENTS

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