South Africa: Notable Nexus - Employers Must Keep a Level Head When Exploring If They Can Fire Off-Duty Employees Involved in Looting

analysis

In the aftermath of the looting and violence that took place across many parts of South Africa, particularly KwaZulu-Natal and Gauteng, and abundant video footage depicting the brazenness of the looters, the question on many employers' minds is whether, if spotted looting while off duty, these employees can be dismissed?

Lauren Salt is an executive in the employment department of law firm ENSafrica.

The knee-jerk reaction of many employers who might have spotted their employees looting on camera would be, "Of course they can be fired! They are committing a crime."

However, it is not that simple. Ordinarily, what an employee does outside working hours is of no consequence to the employment relationship, and dismissing an employee for committing a criminal act while off duty is unlikely to pass the test for substantive fairness.

Having said that, in a variety of cases, South African courts have held that off-duty misconduct can, in certain circumstances, constitute a valid reason for dismissal. This is even more pertinent where the employee's misconduct constituted a criminal offence; where the employee's behaviour involved gross dishonesty and corruption; and where the nature of such resulted in the destruction of the relationship of trust between the employee...

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