“YOU MIGHT WANT TO THINK TWICE ABOUT YOUR CONDUCT AFTER WORKING HOURS”

A common misperception many employees have is that their conduct after working hours cannot have an influence on their employment. But, at which point does after hours employee conduct strain the working relationship and make it intolerable? And what type of conduct may warrant disciplinary action by the employer?

As a general point of departure, it is a widely known fact that the employment relationship is one of trust and good faith, where both the employee and employee have certain obligations towards one another. An employee ought to always act in a way that is beneficial to the growth, continuation, and profitability of their employer’s business.

Plainly put, the employee should not conduct itself in such a manner which may negatively impact its employer’s reputation and earnings.

The test as to whether disciplinary action may be warranted based on the employment relationship becoming intolerable, can found in the Code of Good Practice: Dismissals. The Code stipulates that to justify a dismissal based on an intolerable employment relationship, one must consider whether the employee was in breach of the trust relationship.

In 1995 already, the Industrial Court (the now Labour Court), delivered a gripping judgement in the matter of Van Zyl v Duvha Open Cast Services (1995) 1 ICJ. The Court determined that the fact that the employees, who are co-workers, got into a physical altercation after working hours, had ultimately led to a strained working 2 relationship. This strained relationship had justified a dismissal of the employees implicated.

Also more recently, the Labour Court held in the matter of Bernadette Enever v Barloworld Equipment, case numbers JS 633/20 and JS926/20, that the employee was rightfully dismissed for her use of dagga after hours and at her home. In this instance, the employee’s conduct led to her being in breach of the employer’s substance use policy and she showed no remorse in this respect.

It is clear that the Courts have started holding employees and their conduct to a high standard, especially what the employee gets up to after hours. Employees must always be aware of how their actions may directly, or indirectly, impact the employment relationship. Whether the relationship had been strained or broken down completely, will be left for the Courts and other forums to decide upon.

Employer’s must also be cautioned to consider their employee’s conduct carefully and to be certain that the employee conduct affects their business operations in one way or another. Should the conduct warrant further disciplinary action from the employer, the correct disciplinary and dismissal procedures should still be followed.

By Marco van der Walt
Litigation Associate

Should you require any assistance with any Labour or Employment matter, excluding injury on duty claims, do not hesitate to contact Schröter Attorneys Inc. to obtain sound legal advice.