Can an Employer exercise discipline over an employee for off-duty misconduct?

By Sharusha Moodley

It may happen that an employee’s misconduct does not fall within the express terms of an employer’s disciplinary code. E.g., the misconduct complained of – such as an assault of another employee – occurred outside the workplace or working hours.

Nothing prevents an employer from disciplining the employee if a factual enquiry into certain factors demonstrates a connection between the employee’s conduct and the employment relationship.

The factors to consider are, but not limited to:

• the nature of the misconduct,
• the type of work performed by the employee,
• the position which the employer occupies in the marketplace and its profile therein,
• the type of work or services performed by the employer,
• the size of the employer’s workforce,
• the relationship between the employee and the victim,
• the impact of the misconduct on the workforce as a whole,
• the relationship between employer and employee and the capacity of the employee to perform his job.

At the end of the enquiry, if the employee’s misconduct effectively destroyed or damaged the employer-employee relationship, an employer can most certainly exercise discipline over the employee.

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