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?
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.”
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.
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.”