Lauren Salt is an executive in the employment department of law firm ENSafrica.

The knee-jerk reaction of many employers who might have spotted their employees looting on camera would be, “Of course they can be fired! They are committing a crime.”

However, it is not that simple. Ordinarily, what an employee does outside working hours is of no consequence to the employment relationship, and dismissing an employee for committing a criminal act while off duty is unlikely to pass the test for substantive fairness.

Having said that, in a variety of cases, South African courts have held that off-duty misconduct can, in certain circumstances, constitute a valid reason for dismissal. This is even more pertinent where the employee’s misconduct constituted a criminal offence; where the employee’s behaviour involved gross dishonesty and corruption; and where the nature of such resulted in the destruction of the relationship of trust between the employee and the employer.

This approach is in line with Item 7(a) of Schedule 8 of the Code of Good Practice: Dismissal, which provides that the contravention of a rule regulating conduct in the workplace, or of relevance to the workplace, as being capable of being the subject of disciplinary action. The test for determining “relevance” to the workplace is that:

• There must be a link or nexus between the conduct complained of and the employee’s duties, the employer’s business or the workplace; and
• The employer must have a sufficient and legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace.

Accordingly, if a nexus and interest exist, an employer will be entitled to take disciplinary action against an employee for their off-duty misconduct.

But what does this nexus look like? South African courts have identified that a nexus 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, continuity or good name and reputation of the employer’s business.

There are many conceivable instances where there could be a connection between looting employees and their employer’s business. These include where:

• The employee is wearing their work uniform while looting and is therefore identifiable as an employee of the employer;
• The employee, absent of their uniform, is identifiable as being associated with the business. This might be particularly true for employees who are considered the “face” of the business – including management, sales staff and staff used in marketing campaigns; and/or
• The nature of the offence impacts on the employee’s duties or on the operation of the business. For example, the identified employee works in a retail store and, as such, is entrusted with the employer’s stock.

What this means for employers is that the mere fact that an employer has identified employees in the looting footage does not mean that they automatically have a right to discipline or dismiss employees. In these emotionally charged times, employers should evaluate each of these situations with a level head, ensuring that a nexus exists between the looting and the employer’s business in every instance that the employer elects to take action. 

This, of course, presumes that there is a business to which employees could return. DM