Contemporary Labour Law - workplace.co.za

1 Contemporary Labour Law Vol. 20 No. 10 May 2011. Off duty misconduct When can it give rise to disciplinary action? by le Roux T. he principle that an employee Government Bargaining Council &. may be subjected to disciplinary others (Unreported C490/2009 4 February steps for acts of misconduct 2011). committed whilst not on duty is In the Dolo case the applicant employee accepted both in the Code of Good worked as a table inspector at the Gold Reef Practice: Dismissal and in numerous City Casino. She became romantically decisions and awards. involved with a married man (referred to in Item 7(a) of the Code of Good the judgment as the boy friend.)

2 He was Practice refers to the contravention accused of defrauding his employer through of a rule regulating conduct in the the production of false invoices for goods workplace or of relevance to the allegedly provided to his employer. Payments workplace as being capable of being arising from the presentation of these false the subject of disciplinary action. The invoices were made into the applicant's bank test for determining relevance is that account she received these payments on the employer must have a legitimate behalf of her boy friend - the bulk of which interest in the conduct or activities of was then paid over to the boy friend or paid the employee outside working hours into his bank account.

3 Twelve such deposits or outside the workplace and that there were made involving an amount of some R. must be a link or nexus between the 200 The applicant also signed the first conduct and the employee's duties, the employer's business or the workplace . See Grogan Dismissal at 285 et seq. The duty of an applicant for The application of these principles is employment to disclose Managing Editor: Le Roux Managing Editor: Le Roux Contributing Editor: Carl Mischke Contributing Editor: Carl Mischke illustrated in two recent decisions, information. p94. Editor: Editor: namely Dolo v Commission for Conciliation, Mediation &.

4 Published by Gavin Brown & Associates Published by Gavin Brown & Associates Box 31380 Tokai 7966 Arbitration & others (Unreported The validity of traditional Box 31380 Tokai 7966. Tel: 021 788 5560. Tel: 021 788 5560. JR 1655/07 19/10/2010) and City of healers' certificates. p98. Cape Town v South African Local Page 91. Contemporary Labour Law Vol 20 No 10 May 2011. "In each instance, a multiplicity of factual considerations can determine whether the employee's conduct outside the workplace holds implications for their continued suitability for employment or some form of corrective discipline.

5 Dolo v CC MA & others false invoice presented for payment. her participation in the scheme held implications for her suitability to occupy a position in which she was The Applicant did not deny any of the above facts. entrusted to deal with the employer's cash. It referred She admitted to them in an affidavit that she submitted to the fact that Item 7(a) of the Code of Good to the prosecution service. This was done in order to Practice:Dismissal referred to conduct of relevance ascertain whether she would give evidence against to the workplace and stated that . her boy friend in a criminal prosecution instituted against him.

6 If she did so openly and honestly there was the What the emphasized portion makes clear, is that misconduct outside the workplace and possibility that she would be indemnified against criminal outside of working hours may have a bearing prosecution. on an employee's continued suitability for When these facts came to its knowledge, the employer employment. In each instance, a multiplicity of took disciplinary steps against the employee on the basis factual considerations can determine whether that her collusion with her boyfriend had created serious the employee's conduct outside the workplace holds implications for their continued financial doubt about her and that the trust relationship suitability for employment or some form of had been destroyed.

7 She was also charged with bringing corrective discipline. [At par 19]. the name of her employer into disrepute. She was found guilty of both charges and dismissed. The Court also referred to the following excerpt from Hoechst (Pty) Ltd v Chemical Workers She challenged the fairness of the dismissal. The Industrial Union & Another (1993) 14 ILJ 1449. commissioner found that the employer had been entitled (LAC), to take disciplinary action against her, despite the fact Where misconduct does not fall within the she was not guilty of misconduct vis-a-vis her express terms of a disciplinary code, the employer, but also found that dismissal was not an misconduct may still be of such a nature that appropriate sanction.

8 The employer was ordered to the employer may none the less be entitled to re-employ her in a position that did not involve a daily discipline the employee. Likewise the fact that interaction with cash, even if this meant that her salary the misconduct complained of occurred away was reduced. She was also subjected to a final written from the work-place would not necessarily warning. It is at least arguable that an award ordering preclude the employer from disciplining the the re-employment of an employee working in a casino employee in respect thereof. environment who has been found guilty of participation.

9 In a series of dishonest acts over a period of 2-3 years In our view the competence of an employer to discipline an employee for misconduct not involving some R 200 is reviewable. covered in a disciplinary code depends on a Nevertheless, the employer decided not to review the multi-faceted factual enquiry. This enquiry award and offered the applicant a lower paid job as a would include but would not be limited to the receptionist. She refused this offer and she took the nature of the misconduct, the nature of the work award on review. performed by the employee, the employer's size, the nature and size of the employer's work-force, The applicant raised various grounds for review, the the position which the employer occupies in most relevant being that she had not committed any the market place and its profile therein, the wrong against her employer.

10 The Court accepted that Page 92. Contemporary Labour Law Vol 20 No 10 May 2011. nature of the work or services performed by the degree of trust. As head of contract employer, the relationship between the administration Ncamane is responsible for employee and the victim, the impact of the managing contracts for the supply of goods and misconduct on the work-force as a whole, as services within the City. The city's contention is well as on the relationship between employer that Ncamane has, by her conduct, rendered and employee and the capacity of the employee herself no longer trustworthy to do her job.