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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. In that regard, while employers have very few rights under the Labour Act (Chapter 28:01) they do at least have the right to discipline and even to dismiss employees for work-related misconduct.
The employer must also be able to prove, on a balance of probabilities, that he had the right to dismiss the employee in the light of the facts of the case. Whether the employer had the right to dismiss the employee or not will depend on the employer proving a number of things including that: the employee knew the rule that he allegedly broke, it was a fair rule and was consistently applied, the employee was guilty of breaking the rule, the breach of the rule was so serious as to merit dismissal as a disciplinary measure and or dismissal was justified despite any mitigating circumstances that may have been in play.
In addition to the above factors, the employer will not be entitled to dismiss an employee for conduct that has nothing to do with the employer.
For example, the employer may not normally dismiss an employee who assaults someone in a nightclub over the weekend. However, what if the employee was wearing his workplace uniform at the time of the assault or if the assaulted victim was in some way associated with the employer’s business?
The employee may then be able to make out a case of bringing the name of the employer into disrepute. Thus, despite the fact that the alleged misconduct occurred outside the workplace, at a night club in Chitungwiza for instance, it can still occur within the context of the work relationship and, if it does, then the employer may, in such circumstances, have the right to discipline the employee.
For example, in the case of Saal v De Beers Consolidated Ltd (2000, 2 BALR 171), it was alleged that the employee who worked for the mine had assaulted and raped a woman at a mine village and the employee was therefore dismissed. Although the rape was not proven at Commission for Conciliation, Mediation and Arbitration (CCMA), the commissioner agreed that the employee was guilty of assault.
The employee claimed that his dismissal was unfair because: a criminal case had been laid against him; the alleged assault had taken place outside the workplace and the incident had occurred outside normal working hours. However, the CCMA decided that the criminal case had no bearing on the labour law matter (civil vs criminal case) and that, despite the time and place it happened, the employee’s misconduct still fell under the employer’s jurisdiction.
This was because: the employment relationship and the business of the employer had been affected by the assault; the employer had a direct interest in the well-being of the residents of the mine village, and the employee knew that even assaulting a non-employee in the town infringed the mine’s rules. The CCMA therefore upheld the dismissal.
This is a classical case which confirms that employers, in certain cases of misconduct, for example theft or fraud, are allowed to pursue both criminal and disciplinary measures and proceedings. This is so because labour related matters are based on balance of probabilities while criminal cases rely on evidence, beyond reasonable doubt.
Criminal courts may clear the accused , if there is no evidence, but Labour Courts may find one guilty, based on balance of probabilities and may uphold dismissal, though criminal courts would have found one not guilty, for lack of evidence.
In the case of CEPPWAWU obo Faku v Eco Tanks (2007, 11 BALR 997) the employee was dismissed for being intoxicated, for insubordination and for verbally abusing the employer in the presence of other employees. This incident occurred outside the workplace.
The arbitrator found that the employer had no right to dismiss the employee for intoxication and insubordination because these incidents occurred off the employer’s premises. However, the act of abusing the employer in front of other employees did affect the work relationship and fell within the employer’s jurisdiction.
In this case, had the employee been dismissed for insubordination only (outside the premises) the arbitrator would have found the dismissal to be unfair because the arbitrator had found that the insubordination was not relevant to the employment relationship.
The facts of this matter were as follows; the applicant, a machine operator, had failed to arrive at work and the respondent was forced to close the factory for an entire shift because it was required by law to ensure that all machines were operated by two employees. While transporting the other workers home, a supervisor came across the applicant staggering along the road.
The applicant signalled to him to stop, jumped into the vehicle, and demanded to be taken to work. When he was taken to the home of the respondent to be examined, he became abusive and refused to take a breathalyser test. The applicant was, subsequently dismissed. He claimed that his dismissal was unfair because all the alleged offences had been committed outside the workplace.
It should be noted that the applicant had been absent without leave, that he was intoxicated when he finally made his way to work, and that he had been insubordinate.
However, the applicant could not be found guilty of presenting himself for work in an intoxicated state because he had never reported for work. Nor could he be found guilty of insubordination, because the incident upon which that charge was based also occurred outside the workplace.
However, the fact that the applicant had verbally abused his employer in the presence of colleagues was directly relevant to the employment relationship. Even though this had occurred off the workplace, it had affected the employment relationship. The applicant’s actions were totally unprovoked and there was no justification for his behaviour.
The employer also led evidence that the employee had received numerous prior warnings for various acts of misconduct, but his behaviour did not improve. It was then held that the applicant had not only proved himself as unreliable and irresponsible, but has shown himself to be disdainful of his superiors.
He used foul language against both his immediate manager and the owner of the factory in front of his fellow employees while in his drunken stupor at the time he was supposed to be at work. The application was, therefore, dismissed. The applicant’s dismissal was, accordingly, justified.
In Tanganda Tea Company Ltd vs. Mvududu, (Judgment No. SC 1/07), the court ruled in favour of the employer for dismissing the employee who assaulted an outsider who had come for entertainment in the company’s cocktail bar. He assaulted a Mr Thumbu in a cocktail bar on the employer’s premises, after working hours.
Mr Thumbu was a Mozambican national who had come to the cocktail bar for entertainment. Following this incident, Mr Mvududu was charged with two offences. He was acquitted on the first, but found guilty on the second. He was consequently dismissed.
Dissatisfied, he appealed to the Labour Court against his dismissal. The Labour Court found that since the fighting or violence directed at Mr Thumbu was not work related, no offence had been committed.
Accordingly the Labour Court ordered his reinstatement without loss of salary or benefits. It is against this order that the Tanganda Tea Company appealed to Supreme Court. The Supreme Court was to decide whether the fighting or violence envisaged in the Group Employment Code of Conduct of the Tanganda Tea Company Limited should be work related or involve the appellant’s employees or other people who might have business with the appellant for it to be an offence in terms of the code.
The Supreme Court, on a careful reading of Section 17 of the code, established clearly that this section was intended to cater for situations where the violence or fighting was targeted at company employees or other persons involved in company business.
In other words, if an employee threatens to do physical injury to another employee or any person involved in company business or if he assaults or attempts to assault such person or if he is involved in physical combat with such person then he would be guilty of a breach relating to indiscipline or disorderly conduct, whether its during or outside working hours.
The Court then ruled that the finding of the Labour Court that the fighting or violence envisaged in the code should be work related or in respect of employees or persons who have business with the company was based on a restricted interpretation of the code and ignores the clear provisions of s 10 of Table A, of the code.
The fact that the offence may be the responsibility of other authorities such as the police is really neither here nor there. Criminal offences committed at the workplace even outside working hours will in many instances also be subject to internal disciplinary proceedings. The court ruled in favour of Tanganda Tea Company.
Therefore, in order to justify dismissing an employee, a company would need to establish such things as (a) the conduct of the employee has harmed the company’s reputation or product; (b) the employee’s behaviour has rendered them unable to perform their duties satisfactorily; or (c) the employee’s behaviour has so affected the workplace that other employees refuse to (or are reluctant to) work with him or her; (d) the employee has been guilty of a serious breach of the Criminal Code and damaged the reputation of the company; and (e) the conduct made it difficult for the company to properly manage that employee’s behaviour.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The views contained herein are personal and the information contained herein does not serve as alternative to legal advice.
Taurai Musakaruka is a Human Resources Practitioner. Feedback: e-mail to [email protected] <mailto:[email protected]>
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