What can you do if an employee is identified as a participant in looting

04 Aug 2021 12:00 pm by Maryke Minnie

As an employer, what can you do if an employee is identified as a participant in looting?

Written by Maryke Minnie, Attorney at Futcher & Poppesqou Attorneys, for LexisNexis South Africa

Introduction

  • The violent looting in KwaZulu-Natal which began on Monday, 12 July 2021, forced many employers to close operations completely and certain industries to invoke force majeure.
  • As the identities of those involved become known, employers are now asking the question: “What are the options available to an employer where an employee has been identified to an employer as a participant in the looting?”.
  • As part of our “Picking up the pieces and Looking to the Future” series and to assist our community, we have prepared the update below.
  • Aside from the labour perspective of the employee’s alleged misconduct, the alleged misconduct may also have criminal implications.  The criminal nature of the looting will not be considered, however, may have an impact on any disciplinary action.

Labour Relations Act 66 of 1995 (the LRA)

  • Disciplinary action must be in compliance with the LRA, and must be both procedurally fair (i.e. a fair procedure must be followed) and substantively fair (i.e. dismissal or action short of dismissal implemented for a fair reason).
  • When determining a sanction as a consequence for an alleged misconduct an employer would need to follow the guidelines set out in Schedule 8 item 7 of the LRA (in addition to requirements for procedural fairness and applicable contracts, policies and/or collective agreements):

“7.   Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider –

(a) Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and

(b)   If a rule or standard was contravened, whether or not-

(i)    the rule was a valid or reasonable rule or standard;

(j)    the employee was aware, or could reasonably be expected to have been aware, of the rule or standard;

(k)   the rule or standard has been consistently applied by the employer; and

(l)    dismissal was an appropriate sanction for the contravention of the rule or standard.” (own emphasis)

  • Dismissal for an act of misconduct whilst an employee is off duty
  • Ordinarily, an employee’s conduct whilst off duty would arguably be of no relevance to the employer.
  • However, employers may have a vested interest in the employee’s behaviour outside working hours in certain circumstances; amongst other things, if the employee’s private conduct affects their work performance, the good name and reputation of the employer or its business dealings, or interpersonal relations in the workplace etc.
  • To justify disciplinary action for an employee’s “extramural” conduct, the onus rests on the employer to establish that it has sufficient and legitimate interest in an employee’s conduct outside working hours and the workplace, and that the conduct in question affects the employment relationship and the trust relationship underpinning the employment relationship. It is generally accepted that the employer must satisfactorily prove that there is a connection between the employee’s conduct and the employer’s legitimate interest.
  • It should be noted that such a connection in itself is not sufficient to justify a disciplinary sanction.  The employer will still be required to prove on a balance of probabilities that the employee committed the offence and that dismissal is the appropriate sanction.
  • Thoughts for consideration
  • Was the employee positively identified and, if so, what is the quality and value of such evidence?
  • Was the employee required to be at the workplace rendering his duties at the time s/he allegedly participated in the misconduct?
  • What is the employee’s position within the workplace? Consideration could be given to the employee’s position, his/her duties, his/her obligations, responsibilities etc.
  • Was the employee wearing an official identifiable work uniform that would identify the company?
  • Did the employee vandalise the employer’s business premises?

Conclusion

  • Whether misconduct committed outside the workplace is relevant to the workplace involves a number of considerations, but the central issue is its impact on the employment relationship.
  • In certain circumstances, should the appropriate requirements be met, an employer may be entitled to institute disciplinary proceedings against an employee who has been positively identified as participating in the recent acts of violent looting.  However, employers are cautioned that any steps taken must be in compliance with labour law and that employers are still obliged to ensure both procedural and substantive fairness in disciplinary action.

Maryke Minnie

Attorney at Futcher & Poppesqou Attorneys

This update does not constitute legal advice and does not purport to be a detailed or complete explanation of the subject matter.  Should you require legal advice or wish to take steps in response to this summary, you are advised to contact a qualified professional.

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