Employees have private and personal lives outside the workplace and after working hours, and it is true that the private lives of the employees are no concern of their employers. But, does it get to a point where employers have the right to discipline its employees for their conduct outside the workplace?

To justify disciplinary actions, the onus rests on the employer to prove that it has legitimate reasons to be concerned about the employee’s conduct outside working hours and that the conduct negatively affects the employment relationship and the employer’s business interests. The contract of employment also plays a crucial part in this regard, the employer can easily take disciplinary actions if the employee’s misconduct is in breach of the terms of the contract, and if the employee’s private conduct affects their work performance, the good name and reputation of the employer and its business dealings.

The Code of Good Practice, Schedule 8 of the LRA states that the key principle is that employers and employees should treat each other with mutual respect. A premium is placed on both employment justice and the efficient operation of business. Employers are entitled to satisfactory conduct and work performance from their employees.

Few cases have been decided to illustrate where the line has been drawn in terms of how employees behave when they are not at work.

• In the matter of NUM v East Rand Gold & Uranium Co Ltd (1986) 7 ICLJ 739 (IC) an employee was dismissed for assaulting a fellow-employee on a company bus transporting them to a local township. The Industrial Court held that dismissal was justified even though the incident happened outside the workplace and after hours, all employees on the bus were still discharging their duties as employees. The Employer had a duty to ensure the safety of employees in transit.

• In the matter of Van Zyl v Duva Opencast Services (Edms) Bpk (1988) 9 ILJ (IC) an employee assaulted his supervisor in a mine village outside working hours and was dismissed. The Union argued that the company had no right to take disciplinary action. The Court held that the test to be applied is whether the offence is work-related in the sense that it affected the work situation. The assault was relevant because the victim was the assailant’s immediate supervisor, the assault took place in front of their colleagues, and the relationship between the workers and the residents of the mining village had been negatively affected. It was further found that a fight between colleagues outside working hours resulted in a strained working relationship and the inability of a continued employment relationship, which was sufficient to justify dismissal.

In Conclusion: An employee could only be dismissed if it could be shown that there is a nexus between the offence committed, the employer’s operational requirement and its business. The employer must prove that the misconduct affected the business and the trust relationship negatively.