BY Ivan Israelstam,
Chief Executive of Labour Law Management Consulting. He may be contacted on
(011) 888-7944 or 0828522973 or on e-mail address: [email protected].
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While employers have very few
rights under the Labour Relations Act (LRA) they do have the right to
discipline and even to dismiss employees for work related misconduct. However,
a dismissal will only be upheld by the CCMA, bargaining council or Labour Court

The employer has properly followed a stringent,
complex and time consuming disciplinary procedure laid down by labour law AND

The employer can prove, on balance of
probability, that it had the right to dismiss the employee in the light of the
facts of the case.

Whether the employer had the
right to dismiss the employee will depend on the employer proving a number of
things including that:

The employee knew the rule that he/she allegedly

It was a fair rule and was consistently applied

The employee was guilty of breaking the rule

The breach of the rule was so serious as to
merit dismissal

Dismissal was justified despite mitigating

In addition to the above factors
the employer will not be entitled to dismiss an employee for conduct that has
nothing to do with the employer. For example, the employer may not normally
dismiss an employee who neglects his/her children or assaults a fellow
nightclub visitor. But what if the employee was wearing his/her workplace
uniform at the time of the assault? The employer may then be able to make out a
case of bringing the name of the employer into disrepute.

Thus, despite the fact that the
alleged misconduct occurred outside the workplace, it can still occur within
the context of the work relationship. And, if it does, then the employer may,
in certain circumstances, still have the right to discipline the employee.

For example, in the case of Saal
vs De Beers Consolidated Ltd (2000, 2 BALR 171) it was alleged that the
employee who worked for the mine had assaulted and raped a woman at a mine village
and the employee was therefore dismissed. Although the rape was not proven at
CCMA the commissioner agreed that the employee was guilty of assault. The
employee claimed that his dismissal was unfair because:

a criminal case had been laid against him

the alleged assault had taken place outside the
workplace and

the incident had occurred outside normal working

However, the CCMA decided that
the criminal case had no bearing on the labour law matter and that, despite the
time and place it happened, the employee’s misconduct still fell under the
employer’s jurisdiction because:

The employment relationship and the business of
the employer had been affected by the assault AND

The employer had a direct interest in the
wellbeing of the residents of the mine village AND

The employee knew that even assaulting a
non-employee in the town infringed the employer’s rules

The CCMA therefore upheld the

In the case of CEPPWAWU obo Faku
vs Eco Tanks (2007, 11 BALR 997) the employee was dismissed for being
intoxicated, for insubordination and for verbally abusing the employer in the
presence of other employees. This incident occurred outside the workplace. The arbitrator
found that the employer had no right to dismiss the employee for intoxication
and insubordination because these incidents occurred off the employer’s
premises. However, the act of abusing the employer in front of other employees
did affect the work relationship and fell within the employer’s jurisdiction.

In this case, had the employee
been dismissed for insubordination only (outside the premises) the arbitrator
would (wrongly, I believe) have found the dismissal to be unfair because the
arbitrator had found that the insubordination was not relevant to the
employment relationship. Every case taken to CCMA or bargaining council will
potentially have a different outcome because circumstances differ as do the
viewpoints of different arbitrators. It is therefore very important for
employers, before dismissing employees for off site misconduct, to get the case
analysed by a labour law expert in order to check whether dismissal will be
acceptable or not.

To book for our 5 April Johannesburg seminar on
CHANGES AND DANGERS IN LABOUR LAW please contact Ronni via 0845217492 or
[email protected]

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