adminDavies Sibanda Labour Matters
DESPITE the fact that a lot has been written about misconduct outside working hours or outside the workplace, many employees and employers remain unclear about where to draw the line between misconduct punishable in terms of the code of conduct and misconduct beyond the scope of the code of conduct.
The employer does not have the right to discipline an employee for conduct that has nothing to do with the workplace. The employee, however, does not have absolute protection, for example an employee who works for a mine and lives in a mine housing estate can be disciplined for beating his wife in violation of mine accommodation rule that prohibits assaulting other residents.
It can be legally argued that the employer has an interest in the well-being of all residents and has a duty to uphold housing estate rules.
There are five main guidelines on whether the employer will intervene, discipline a worker for misconduct outside working hours or outside work and these are:-
If the misconduct occurred in the premises owned or controlled by the employer for example, an employee who gets vulgar and disorderly at football stadium or beer hall owned by the employer runs the risk of being disciplined using the code of conduct even if the employee was off or on leave.
Where misconduct occurs at an event organised by the employer such as end of year party or at an outside training seminar organised by the employer, for example, an employee who is sent to attend a seminar away from home station can be disciplined for misconduct that occurs at the end of seminar party if reported to the employer.
Where the conduct of the employee brings the name of the employer into disrepute, the disciplinary code of conduct can be used. It must be noted that there must be evidence that the conduct of the employee brought the name of the employer into disrepute. Incidents where the name of the worker’s employer is mentioned after an incident might just be statements of fact and do not bring the name of the employer into disrepute.
At times, due to the employee’s seniority, he or she carries the image of the employer beyond working hours meaning that certain conduct by a senior manager which would not be an issue with a junior employee could attract disciplinary action.
There are also instances where conduct of the employee affects relationship to an extent that the employer has to take disciplinary action over actions that took place outside but had a bearing on relationships. The employer will have to demonstrate how the relationship is affected.
In a South African case (CEPPWAWU abo Faku vs Eco Tanks) (2007: 11/BALR 997) an employee was dismissed for being drunk, insubordination and insulting his supervisor in front of other workers. Despite the fact that the incident occurred outside the workplace the employee was dismissed because, “the act of abusing the employer in front of other employees did affect work relationship and fell within the employer’s jurisdiction.”
In conclusion, workers need to be careful to avoid acts outside work that could result in them being disciplined using the code of conduct. This applies mainly to workers who live in employer provided accommodation and employer managed housing estates. The issue is not whether rules are written or not but workers must note that they can be disciplined for breach of implied conditions of accommodation provision.
Davies Ndumiso Sibanda can be contacted on email: [email protected]; cell: 0772 375 235
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derick.khumalo