Misconduct after hours

The general rule is that an employee’s actions outside the working environment and after hours is not the employer’s concern and may the employer not institute disciplinary action against an employee for acts of misconduct committed after hours. The exceptions to the general rule are instances where the employer can prove that the employee has brought the name of the business in disrepute, or where the employee’s conduct has a sufficient connection with the business of the employer.

Misconduct committed by an employee outside the working environment may be so severe (depending on the circumstances), that the employee may be dismissed, e.g. where an employee is arrested for driving under the influence of alcohol in a branded company vehicle. The misconduct committed by the employee will bring the name of the employer in disrepute and the employer would be able to justify disciplinary action against the employee. In the event that the employee has been arrested for driving under the influence of alcohol, but with his/her personal vehicle and there is no link between the employee’s behaviour and the business of the employer, it would be more difficult for the employer to justify disciplinary actions.

The position of the employee in the company will also be an important factor when considering disciplinary action.

If the employee is a general worker who was found guilty of an act of malicious damage to property, the act might possibly have no impact on the business of the employer. If the employee is however employed as the managing director and he/she was found guilty of the same offence, the outcome might differ substantially. The reason being that the actions of the managing director of the business might bring the name of the business in disrepute.

The nature of the offence also determines whether disciplinary action should be implemented or not.

If an employee is dishonest on their home loan application or a vehicle finance application, the employer will not be entitled to take disciplinary action.  If the employee however commits fraud by altering a payslip to inflate his/her income, the actions of the employee might justify a dismissal.  It is of utmost importance to preserve the trust relationship between an employer and an employee.

It has been held by our courts that the link between the employee’s off-duty misconduct and the employer’s business exists where the employee’s conduct has a detrimental or intolerable effect on the efficiency, profitability or continuity of business of the employer.

A variety of factors should be considered in matters where employees commit misconduct outside the working environment.  The employer should consider each matter upon its merits and discipline must be applied consistently.

The LWO can provide assistance where employers need to determine whether disciplinary action is justifiable for misconduct outside of the workplace.  Contact the LWO for more information and/or advice at 0861 101 828.



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