Can employees be disciplined for criminal acts (eg looting) committed off-duty?


The Money Show’s Bruce Whitfield gets insight from employment law specialist Bongani Masuku (Cliffe Dekker Hofmeyr).

The recent looting and acts of violence in KwaZulu-Natal and Gauteng present another challenge for businesses:

Should and could an employer discipline and potentially dismiss participating staff members caught on camera?

While an employer generally does not have the right to sanction conduct outside of the workplace and outside of working hours, the answer depends on the facts of the individual case say employment law experts at Cliff Dekker Hofmeyr (CDH).

Looters walk off with their loot from a store in Vosloorus on 12 July 2021. Picture: Boikutso Ntsoko/Eyewitness News

“Social media has resulted in an increasing number of cases in which employees are dismissed for acts of misconduct committed outside of the workplace. Perhaps the most infamous of these are the ones that involve racist remarks made on social media.”

“Where employers have been able to show sufficient linkage between the employee and the employer, the employers have been able to establish a basis to discipline and dismiss.”

RELATED: What SA labour law says for businesses not fully operational after riot damage

Bruce Whitfield talks to attorney Bongani Masuku, CDH Director in Employment Law.

The consequences could be dire for an employee spotted taking part during the recent looting for example, says Masuku.

Off-duty misconduct is a concept and a principle that is well-established in our labour law in South Africa.

Bongani Masuku, Director – Cliffe Dekker Hofmeyr

We’ve seen a number of examples relating to being dismissed for posting something on Facebook that was offensive or saying something offensive against the company that they work for…

Bongani Masuku, Director – Cliffe Dekker Hofmeyr

So while ordinarily as a general rule you may not act against an employee in relation to stuff they do at home or while they’re off duty… the exception to that rule is thriving in our law…

Bongani Masuku, Director – Cliffe Dekker Hofmeyr

… off duty misconduct is very much disciplinable and dismissible so in those circumstances where people are caught on camera… they may be called before a disciplinary inquiry and that doesn’t necessarily have to wait for them to be convicted in a criminal court for any kind of crime.

Bongani Masuku, Director – Cliffe Dekker Hofmeyr

In the cases springing from the recent looting, bringing a company’s name into disrepute will play a big role says Masuku.

For more detail, listen to the audio clip below: