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'Can I dismiss my employee if his misconduct took place outside work?'

by , 03 February 2015
For days, social media has been ablaze. And it's all thanks to a nude video of popular pastor Sthembiso Zondo that went viral.

In the video, Zondo who has a motivation slot on Ukhozi FM's breakfast show is walking around his house naked and talking on his cellphone.

Following the incident and criticism, the SABC pulled the plug on Zondo's slot and dismissed him.

The broadcaster says it took the decision because the situation had a negative impact on a show that deals with morality issues.

Now there are questions about whether or not it's fair or even legal to fire an employee for misconduct if the incident occurs outside work.

Today we set the record straight...

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Out-of-office misconduct: Is dismissal justified?

Yes, you can dismiss your employee for misconduct outside the workplace. But, doing so isn't straightforward.

You can only dismiss your employee if you can show there's a link between the misconduct and your company or operational requirements.

You must prove the misconduct affects your business negatively. For example, it brought your company into disrepute and you lost clients.
And you can't just dismiss right away. You must hold a disciplinary hearing before you dismiss your employee for misconduct.
That said, dealing with misconduct outside of work is difficult
The difficult part is describing the misconduct.
According to lexisnexis.co.za, if you want to charge your employee for misconduct outside work, framing the charges is a challenge. This is because most disciplinary codes focus on at-work misconduct and don't cover misconduct outside of work.
To overcome this, you must prove the rule your employee broke is so obvious and well known, there was no need to communicate it.
The site explains that in the case between Tibbett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), the court found that there's a standard of ethical behaviour you don't need to remind your employees about.
If you can prove this, it doesn't matter that the offence isn't in the code, you can discipline your employee for the misconduct.
The good news is you can avoid these difficulties if you just follow this rule…

Here's the rule you must follow to deal with out-of-work misconduct

You must 'state in your disciplinary code that you can discipline employees for external misconduct,' advises Taryn Strugnell, Managing Editor Labour Law For Managers.
'Let employees know they're free to do as they please when they leave work, but they mustn't act in a way that will negatively affect their job or your company,' she cautions.
To find out the other rule Strugnell recommends you follow and a sample misconduct clause to include in your disciplinary policy, check out this article.
There you have it: Proof that you can dismiss your employee for misconduct outside work as long as there's a connection between his misconduct and your company.
PS: If you have any questions about dismissals, ask our experts at the Labour & HR Club.

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