Handling badly behaving employees

IT is indisputable that gross misconduct of an employee in the workplace and during working hours undermines the trust and confidence reposed on him by the employer.

This includes but is not limited to dishonesty, drug abuse, alcohol abuse, sexual harassment, negligence of duty, fighting while on the job, improper and unauthorised use of employer’s property, destruction of employer’s property, using abusive language towards others, insubordination, and disorderly behaviour. In these circumstances, there is a justifiable basis for the employer to sever the employment relationship.

Does an employee’s criminal conduct or inappropriate behaviour committed away from the workplace and outside office hours form a legitimate basis to take disciplinary action up to and including dis- missal? Inappropriate or improper conduct outside the workplace includes making derogatory or disparaging comments against the employer or its products on social media or engaging in an indecent or immoral activity with a co-worker or another person who is not an employee, or being charged with a criminal offence which is not work-related such as possession of dangerous drugs, murder, culpable homicide as a result of negligent driving, and sexual offence with a minor.

It must be noted that an employer does not have an implied right to control their employee’s private activities outside office hours and workplace. However, in certain circumstances the employer can take disciplinary action against the employee whose outside activities potentially damage the employer’s image or reputation, for example when an employee commits sexual harassment against the company’s clients, uses profane language to a client, sends e-mail to customers disclosing the company’s internal problems, publishes anonymous derogatory statements online against the employer, possesses dangerous drugs or obscene materials outside the workplace or violates the company’s anti-money laundering policies and guidelines.

In these circumstances, the employee’s continued employment would pose a risk to the employer’s image or reputation. Even consensual immoral activities among co-workers or with the company’s customers outside the workplace may tarnish the company’s reputation.

Disciplinary action against the employee may be warranted for as long as the conduct complained of has brought, or has the potential to bring, the company into disrepute or cause embarrassment and jeopardy to the company’s image.

The employer must provide cogent and tangible evidence that its image and reputation had been tarnished by the act of the employee.

There is no requirement in law that the company must prove that it had suffered actual loss before taking any disciplinary action against an errant employee.

In short, an employer will be justified in dismissing an employee when the employee’s conduct is prejudicial to, or is likely to be prejudicial to the reputation of the employer.