A recent high-profile incident on a domestic flight has sparked conversation about the extent of an employer’s authority to discipline employees for behaviour outside of the workplace. The situation reportedly involved a disruptive altercation that gained significant public and media attention. This article explores whether an employer has the right to take disciplinary action in such situations, what employment contracts usually stipulate, and the employee’s duty of good faith toward their employer.

Employment contracts: What do they say?
An employment contract is the foundation of the relationship between an employer and an employee. These contracts typically outline the duties and expectations of both parties, including clauses related to workplace behaviour, adherence to policies, and the duty of good faith.

While most employment contracts primarily govern conduct within the workplace, many include provisions that extend to behaviour outside the office if it directly affects the employer’s reputation or business interests. For example:

  • Reputation clause: Employees may be required to avoid conduct that could bring the employer into disrepute.
  • Good faith obligation: Employees are expected to act in a manner that upholds the trust and confidence of the employment relationship, even when they’re off duty.

Duty of good faith
In South Africa, labour law imposes a duty of good faith on employees, requiring them to act honestly, responsibly, and in the best interests of their employer. This duty doesn’t stop when the employee leaves the office; it extends beyond the workplace if their actions:

  • Harm the employer’s reputation: Public misconduct, especially when it is widely reported, can damage the employer’s image.
  • Jeopardise workplace relationships: Behaviour that undermines trust between colleagues or the public, can create tension in the workplace or harm the
    employer’s standing.

In the case of a public altercation, such as the recent flight incident, an employee’s actions could arguably breach the duty of good faith if they tarnish their employer’s image.

An employer’s right to dismiss for misconduct outside the workplace
Employers have the right to discipline and even dismiss employees for misconduct outside the workplace, provided it can be shown that the misconduct is linked to the employer’s interests, operations, or the working relationship. This principle was affirmed in the case of Horn v Beesnaar NO & Others (2022) 43 ILJ 115 (LAC), where an employee was dismissed for misconduct that occurred outside of work.

In that case, the employee assaulted a co-worker outside of working hours and off the premises, but the incident was connected to the workplace because it stemmed from a dispute between colleagues. The Labour Appeal Court upheld the dismissal, ruling that an employer can take disciplinary action when misconduct outside the workplace affects the employer’s operations, reputation, or working relationship.

The Court reasoned that, although the employee’s anger was provoked, their response exceeded what could be regarded as acceptable behaviour. The dismissal was deemed a “sensible operational response to risk management,” and was found to be both procedurally and substantively fair.

Similarly, in the case of Edcon Limited v Cantamessa and Others (2019), the Labour Court clarified the circumstances under which an employer can discipline employees for misconduct outside the workplace, emphasising that such behaviour can affect the employment relationship. In this case, the employee was dismissed for posting offensive comments about the then South African President on her personal Facebook account while on annual leave.

Although the comments were made using her personal device, outside of working hours, and on her own data plan, the Labour Court ruled that Edcon had the right to discipline her. Why? Because her Facebook page mentioned her employment with the company, and as a public figure in her industry, her actions posed a risk to Edcon’s reputation. The court found that the link between the employee’s post and the employer’s reputation was strong enough for the company to take disciplinary action.

This case serves as a reminder that employers generally do not have control over private actions, but when misconduct negatively affects the employer’s image or business, they can justifiably intervene.

Conclusion
Employees are increasingly reminded that their behaviour outside of work can have professional consequences, especially in today’s age of social media, where incidents can quickly go viral. Employers, on the other hand, must find a balance between protecting their reputation and respecting employees’ privacy and autonomy.

High-profile incidents like the recent flight altercation serve as a stark reminder of the importance of aligning personal conduct with professional obligations. For employers, it underscores the need for clear policies on off-duty behaviour, ensuring that both employees and management understand their rights and responsibilities. By fostering a culture of mutual respect and accountability, both parties can navigate these challenges effectively, maintaining the trust and integrity essential to a productive workplace.

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