Misconduct outside working hours

An employer has the right to discipline or even dismiss its employees for work -related
misconduct. A dismissal for misconduct is based on the employee’s intentional or
negligent non-compliance with company rules or standards.

In respect of misconduct, the employer bears the onus of proof in dismissal disputes. The
employer must prove that the employee contravened a rule, was aware of or could
reasonably have been aware of the rule, that the rule was valid, there was consistency in
the application of the rule and that dismissal was the appropriate sanction (substantive
fairness).

An employer cannot dictate an employee’s conduct outside working hours, as employees’
personal lives do not fall within the ambit of the working relationship. However, the
distinction between an employee’s private life and working life cannot always be
separated, as the employer could have an interest when the employee’s behaviour affects
the employee’s ability to do his/her work, the good name and reputation of the employer or
its business dealings with others, or interpersonal relations in the workplace. In such
cases, the employer may be entitled to take appropriate action against the employee.

Should the employer wish to discipline the employee for conduct outside working hours,
the employer bears the onus of proving that it has a sufficient and legitimate interest in
the employee’s conduct which justifies action being taken. Therefore, it is important for
the employer to show that despite the conduct not being directly related to the employee’s
employment, it does impact on the employment relationship in one way or another, in that,
e.g.:

1. although not directly related to the employee’s work, the conduct happened in a
   place over which the employer has jurisdiction (e.g., the company pub or hostel);
2. although not directly related to the employee’s work, the conduct happened in a
   place over which the employer has jurisdiction (e.g., the company pub or hostel);
3. although not directly related to the employee’s work, the conduct happened in a
   place over which the employer has jurisdiction (e.g., the company pub or hostel);
4. the employee’s conduct affected relationships at work; or
5. The status and/or seniority of the employee is such that his/her conduct outside
   working hours necessarily impacts on the employer.

Therefore, in addition to proving that the behaviour constitutes misconduct, the employer
must also show a link between the employee’s misconduct and his/her employment.
The test is therefore whether the conduct was work -related or affected the employment
relationship.

In conclusion, an employer can only discipline an employee for misconduct outside
working hours if it can show a link between the employee’s misconduct and an adverse
impact on the employer or the employment relationship, meaning that the employer has a
legitimate interest in the employee’s conduct.

December 2009