South African labour law recognises the right of an employer to discipline an employee and even dismiss him for misconduct committed after working hours and away from the workplace

CAN an employee be dismissed for misconduct committed after hours and away from the workplace?

The employer's right to discipline an employee arises from the employment relationship.

It follows that an employer cannot dismiss an employee who neglects to support his family or assaults someone in a nightclub on a Friday night.

It is generally accepted that an employer has the right to formulate workplace rules and insist that all employees follow such rules within the context of the workplace.

Such workplace rules will generally bind the employees while at work and on the employer's time.

A question that is often asked is why is an employer entitled to discipline an employee, for how he or she chooses to conduct him or herself where such an employee is not on company time or on company premises?

Prohibiting an employer from taking action against an employee for misconduct after hours can present serious problems for an employer.

An example is where the employee assaults a fellow employee or a customer of the employer, after working hours. It is clear that in both instances, the business of the employer will be negatively affected by the assault and the employer will be expected to take action.

In a case that came before the CCMA, a mine employee was accused of assaulting and raping a woman at the mine village. The employer took disciplinary action against the employee and dismissed him.

The employee argued that his dismissal was unfair because his misconduct occurred outside working hours, had nothing to do with the employer's business and that criminal charges were laid against him.

Though the rape allegation was not proven the commissioner found that the employee was guilty of assault and that the criminal proceedings had no bearing on the labour matter.

The commissioner found the dismissal was fair and the employer had the necessary jurisdiction to discipline the employee.

In yet another case, an employee was dismissed for being drunk, insubordination and for verbally abusing the employer in the presence of other employees. The incident occurred outside the workplace and after working hours.

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. But the offence of abusing the employer in front of other employees affected the work relationship and fell within the employer's jurisdiction to discipline the employee.

In a subsequent matter before the CCMA, an employee was employed by the Gold Reef City Casino as a table inspector.

The employee in a plea bargaining arrangement with the prosecuting authorities admitted on affidavit to being guilty of fraud in that she colluded with her boyfriend to defraud her boyfriend's employer.

When her employer became aware of the criminal offence, it dismissed the employee on the grounds that her criminal offence destroyed the trust relationship and that she had brought the employer's name into disrepute.

The employee argued that her dismissal was unfair because her alleged wrongdoing had nothing to do with the business of the employer.

The commissioner found that the employer was entitled to take disciplinary action against her, though she was not guilty of misconduct against her employer.

The above demonstrates that South African labour law recognises the right of an employer to discipline an employee and even dismiss him for misconduct committed after working hours and away from the workplace.

• Modise is deputy chairperson of Eversheds and Chauke a candidate attorney at Eversheds