Misconduct committed outside the Workplace: Can this impact upon the Employment Relationship?
The Labour Court has held that an Employer can discipline an employee for misconduct committed outside the workplace and, in certain circumstances, where the misconduct was committed prior to employment with the Employer.
In the matter of City of Cape Town v SA Local Government Bargaining Council & Others (2) (2011) 32 ILJ 1333 (LC), the Employer discovered, via a Scorpions’ Investigation into licensing fraud in the Public Service, that a senior managerial employee had presented a false Namibian driver's license to the Kuils River Authority for conversion into a South African driver's license in contravention of the National Road Traffic Act, 93 of 1996.
The employee was dismissed for gross dishonesty on the basis that her position was one that demanded 'impeccable trust credentials'. The employee referred an unfair dismissal dispute to the Bargaining Council. During the Arbitration, the Arbitrator found that the employee had been a party to the fraudulent issuing of the driver's license, but that the sanction of dismissal was too extreme because, inter alia, the fraud had not been committed in relation to her duties and the Employer had not suffered any loss or direct prejudice as a result of the employee's misconduct. The Arbitrator held further that nine years had passed since the fraud was committed and therefore in the circumstances did not justify dismissal.
On review, the Labour Court held that dismissal was an appropriate sanction in the circumstances. The Court found further that the dishonest conduct of the employee went to the heart of the employment relationship and was essentially destructive of the trust relationship. The fact that the dishonest conduct was not relevant to the employee's duties was not the decisive factor.
The Labour Court further reasoned that where an employee employed in a position of trust abuses that trust, it is irrelevant that the misconduct was not work related, that the Employer suffered no loss and that the offence was only uncovered nine years later. The Labour Court held that the trust relationship had irretrievably broken down and therefore found that the sanction of dismissal was appropriate in the circumstances.
The test which should be applied in this respect is clearly whether the misconduct in issue is whether it affects the employment relationship. This is critically important.
In the matter of Theewaterskloof Municipality v South African Local Government Municipality & Others (2010) 11 BLLR 1216 (LC), a Municipal Manager was dismissed for receiving two payments in lieu of a travel allowance amounting to R 7 000. 00 in error and which he knew he was not entitled to receive, spending the travel allowance and, only upon being approached by the Employer, offered to repay the travel allowance in mediocre instalments of R 10. 00 per month. The suggestion to repay the debt in monthly installments of R 10. 00 per month exhibited an absence of remorse on the part of the employee.
The Labour Court found that the employee had opportunistically acted upon an administrative error on the part of the Employer and his dishonesty was exacerbated by his refusal to repay the Employer and accordingly upheld the sanction of dismissal.
These above cases reaffirm the pivotal nature of trust in an employment relationship and set out that offences involving dishonesty are generally destructive of an employment relationship.
It must be noted however that the dismissed employees in the above cases were senior managers and by the nature of their positions, held positions of trust. This was a relevant consideration by the Labour Court and CCMA in arriving at its findings. Off course, all employees hold positions of trust with their respective Employers but their specific positions can impact upon the circumstances in relation to the misconduct.
Whilst Employers are entitled to institute disciplinary proceedings against the employee for misconduct, very specific charges should be issued against the employee as these cases are not always straightforward.
