Finweek English Edition

Can employers dismiss workers involved in looting?

The July looting and public violence resulted in huge losses. What can you do if your own workers partook in it?

- By Amanda Visser

business owners who witnessed their life’s work being trashed and burnt before their eyes by their own employees have suffered massive damage, and also a complete break in trust between them and many of their employees.

The question is whether they are entitled to dismiss their off-duty employees for their participat­ion in the looting and violence during the mayhem in KwaZulu-Natal and parts of Gauteng in July.

According to Clyde Curran, candidate attorney at Miller Bosman Le Roux

Attorneys, an employee’s conduct outside the workplace and after hours in most instances falls outside the scope of the employer’s authority.

“However, where such conduct has an adverse impact on the business, the employer is entitled to follow fair disciplina­ry procedures, which may possibly lead to the dismissal of an employee,” he writes in an article published on the firm’s web page.

“Dismissal for off-duty misconduct is more pertinent in cases where the employee’s conduct involves gross dishonesty or corruption and where, as a result, the relationsh­ip of trust between the employer and employee is irreparabl­e.”

Establish a link

Curran says South African law provides a test to determine what constitute­s conduct that is relevant to the workplace. The first is to establish a link between the conduct, the employee’s duties, and the employer’s business.

Second, the employer must have a legitimate interest in the conduct of the employee outside of working hours. If such a link can be establishe­d, then the employer is entitled to subject the employee to disciplina­ry action for his misconduct.

“Furthermor­e, our courts have ruled that a nexus (link) between an employee’s misconduct while off duty and an employer’s business exists where the employee’s conduct has an adverse or intolerabl­e effect on the efficiency, profitabil­ity, continuity, or reputation of the employer’s business.”

Curran warns that if the employer dismisses the employee without establishi­ng a nexus, he may be faced with an unfair dismissal claim at the Commission for Conciliati­on, Mediation and Arbitratio­n.

Breakdown in trust

Patrick Deale, labour and employment lawyer and acting Labour Court judge from Deale Attorneys, says the employer will need similar evidence necessary to lay a charge for any other form of misconduct such as assault or theft. “The general principles will also apply to looting where the employees were identified.”

This evidence may be in the form of video footage, photograph­s, security cameras or reliable witnesses placing employees on the scene.

Indirect evidence or evidence of a circumstan­tial nature is a bit more tenuous. Employers need to be cautious when they rely only on circumstan­tial evidence as it is easier to make a mistake.

“The best would be to have hard

forensic evidence such as footage or even fingerprin­ts, bits of clothing left behind, or even audio where you can recognise people’s voices to place them at the scene and to identify them.”

The employer will also have to establish whether they participat­ed in the looting and public violence. Did they enter the premises unlawfully, did they smash the windows or break down the doors and did they leave with something like a flatscreen television?

“This conduct covers a range of charges, from trespassin­g, breaking and entry to theft. If they were involved in trashing the business or burning of the buildings it could include damage to property and arson.”

Disciplina­ry action

Deale says if the employer witnessed or recognised his workers looting and trashing another business or retailer, it is evidence of a criminal nature.

This is similar to an employee being accused of and charged with theft from another business. The employer may embark on disciplina­ry action and dismissal if the employee’s conduct causes a break in the employer-employee relationsh­ip. The employer does not need to wait for the criminal trial, which may only start years later.

Curran says in the context of an employee caught looting, the employer can establish the link if, for example, the employee was caught looting in his work uniform and can therefore easily be identified as an employee of the employer.

Even if the employee was not in work uniform but is still identifiab­le as being associated with the company, the employer is entitled to take disciplina­ry action against the employee for their off-duty misconduct.

Deale says employers need to present all the facts to the employee to offer them an opportunit­y to respond. “If the person does not give a reasonable explanatio­n, the employer should inform him of the seriousnes­s of the matter and that it justifies suspension pending a disciplina­ry hearing.” Depending on the outcome, the worker may be dismissed.

Communicat­ion to employees

Deale advises employers to clearly communicat­e to their employees that conduct witnessed during the July looting and public violence is utterly unacceptab­le from a societal and business perspectiv­e. “Read them the riot act, so to speak. People must be under no illusion that there will be consequenc­es if they are involved in looting and violent conduct.”

He also advises employers to set up a hotline where people may report acts of violence or any future threats of violence or disruption.

Deale says the workplace can be a good conductor to establish the link between conduct and consequenc­es by advancing different acceptable standards of conduct.

“This is not necessaril­y possible in the broader society where the criminal justice system does not function all that well. In the workplace there are four walls with systems, codes of conduct and procedures to deal with unacceptab­le behaviour and laws to back it up.”

There is little space to hide from or escape the consequenc­es.

Dismissals

Deale remarks that dismissal in SA is an extremely serious consequenc­e. “People may recover from having to pay a fine but it is more difficult to recover from being dismissed because of violent conduct.” It can be a life sentence in a country with the worst unemployme­nt figure of more than 44%.

Curran cautions that employers do not enjoy an automatic right to dismiss employees who have been caught in the act of looting, or for any general off-duty misconduct. It remains critical to assess and evaluate each occurrence before acting. ■

“Read them the riot act, so to speak. People must be under no illusion that there will be consequenc­es if they are involved in looting and violent conduct.”

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 ?? ?? Patrick Deale
Labour and employment lawyer and acting Labour Court judge from Deale Attorneys
Patrick Deale Labour and employment lawyer and acting Labour Court judge from Deale Attorneys
 ?? ?? Clyde Curran Candidate attorney at Miller Bosman Le Roux Attorneys
Clyde Curran Candidate attorney at Miller Bosman Le Roux Attorneys

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