Disciplining employees for misconduct outside of the workplace

Disciplining employees for misconduct outside the workplace is not as straightforward as it may seem. The question remains - can employers discipline employees when they post unfavourable comments regarding their employer or comments that may adversely impact their employer, on their own social media accounts, with their own data and devices, especially when this conduct occurs outside the workplace or working hours? 

The general rule in these circumstances is that actions performed outside of the workplace and working hours are beyond the scope of the employer’s disciplinary authority. Based on the premise that the private lives of employees are usually of no concern to their employers, and resultantly, employers have no right to dictate the conduct of employees outside of their working hours. However, disciplinary action for an employee’s extramural conduct may be justified in certain circumstances, namely when a connection can be established between the extramural misconduct of the employee and the impact that this conduct has on the employer’s business, or the employment relationship. The nature of the misconduct, the size of the employer’s workforce, the work or services performed by the employer, and the nature of the employer’s work performance also play a role in the outcome of the ruling.

There are a number of cases that support this stance, such as the case, Edcon v Cantamessa and others (2020) 29 LC 1.11.10. The Labour Court had the opportunity to consider these issues in the context of a “racial monkey slur” posted on Facebook.

In this case, an Edcon employee made a comment on a Facebook post during her annual leave in December 2015, which was considered a display of racism. The employee was on annual leave when she referred to, inter alia, politicians as “… stupid monkeys” Her Facebook page disclosed that she was employed at Edcon. 

This comment was triggered by a discussion aired on Carte Blanche on the reshuffling of the cabinet made by then-President of South Africa, Jacob Zuma. 

Disciplinary hearing

During a disciplinary hearing, the chairperson of the hearing found the employee guilty. The employee was charged and dismissed for making this inappropriate racial remark, while other Edcon employees who liked the post only received a final written warning. 

The CCMA

The CCMA found the dismissal unfair due to inconsistency (the parity principle) and found that there was no link between the employer and the post. 

Edcon argued it was a breach of their Social Media Policy, but the CCMA held the Policy only applied if she had used Edcon’s equipment and facilities. And that “The Code of Ethics” also stated only how employees should behave “when at work”. 

The Labour Court

Edcon took the arbitration award on review to the Labour Court (LC). The LC had to determine whether the employer had the right to discipline her. 

• The Court held that an employer’s right depends on a multi-faceted factual enquiry, including the nature of the misconduct and work performed by the employee. 
• The Court held that the employer must establish the necessary connection.
• The Court found the remarks went out of the scope of freedom of expression. 
• This protection did not extend to advocating hatred based on race. 
• It was accepted that such incitement can cause racial disharmony in the workplace and in the general public. 
• Her misconduct was serious in nature and potential to seriously harm the business.
• The dismissal was upheld with no order as to costs. 

This judgment highlights that the disciplinary reach of an employer extends to conduct outside of working hours and off the employer’s premises and once again confirms the unacceptable nature of racist conduct or comments, irrespective of whether the conduct or comment took place, or was made, in or outside of the workplace. 

Dealing with misconduct out of the workplace is difficult

It is advisable that employers provide for misconduct outside the workplace in its disciplinary code. Employers should inform and educate employees that they cannot act in a manner that will negatively impact the company, their fellow employees, or their job outside the workplace.

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