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He is such a nice guy – quiet, but always willing to assist.” said one surprised co-worker when the police handcuffed her colleague. No-one had any reason to suspect that he would be arrested for terrorism. Once over her initial shock, the line manager phoned the human resources manager for advice on how to handle the situation. They distilled the central issue to be whether the employer has the right to take action against an employee for his private actions.

The general rule is that an employer does not have the right to intrude into the private life of an employee. The employer’s right to take action against an employee stems from the employer’s right to control and direct the employee, the subordinate in the relationship. This employer control is limited to activities that have a bearing on the employment relationship. When you unpack this rule, though, you realise that it can stretch to cover conduct outside of the workplace or after working hours.

An employee’s religious or political views are private views that do not impact the working relationship. As a society we should value a plurality of views and beliefs, and guard against excluding people based on their affiliation or association. The Constitution safeguards freedom of expression, religion, beliefs and opinion. It also protects freedom of association. The Employment Equity Act prohibits unfair discrimination against any employee on various listed grounds, including belief, political opinion and culture. An employer has to act within this legal framework when considering whether it may discipline an employee for views expressed or actions taken in his private life. The impact on the employment relationship is critical.

Our courts have accepted that, in the age of social media, employees who vent on Facebook could be dismissed where this hampers the relationship with their employer. A supervisor cannot reasonably be expected to continue to work with a subordinate who badmouthed him on social media. An employee may be dismissed for making disparaging remarks about clients on LinkedIn. Tweeting racist posts on Twitter could fairly result in the offending employee’s dismissal. In all instances, the legal argument is that the private conduct of the employee has made continued employment intolerable. The employer may thus take action against the employee even where he acted in his private capacity.

Does this mean that employers can be Mother Grundy, though? Has the workplace become the equivalent of a Nanny State? The short answer is that employers have to assess whether the employee’s private conduct has a disparate negative impact on the employment relationship before it stretches its long arm into the employee’s private life. The nature of the workplace and the employee’s position are two critical factors to consider when weighing up the conflicting rights of the parties. Whether the employee is an exotic dancer after hours may have no bearing on his employment relationship if his primary employer is a gym and he is a dance instructor. However, if his main employer is the church and he is the local vicar, the outcome may be different.

Considering relevance is also true in relation to criminal conduct of an employee. An employer has no automatic right to terminate an employee’s service merely because the employee has been convicted of a criminal offence. An employee convicted of driving under the influence may legitimately feel aggrieved if his services are terminated where he has an administrative role, such as driving a desk. If he is the CEO’s chauffeur, he may be on more tenuous grounds. The same is true where the employee convicted of fraud is the chief financial officer.

The outrage that may result in an employee’s conviction for terrorism may impact negatively on continued employment irrespective of the employee’s role, but this stands to be tested on the facts applicable to each case. Employers may also terminate the services of an employee where the employee is incarcerated and unable to report for duty, but only after following a fair process to investigate all options prior to making the decision to dismiss.

Employees should avoid their private interests violently conflicting with their employer’s business interests. Employers should consider the true impact of non-work employee conduct on the employment relationship before taking action against staff.

* This article was first published in The Star, Workplace on 10 August 2016


Johan Botes is a partner and heads Baker McKenzie’s Employment Law Practice Group in Johannesburg. He focuses on employment law and labour relations and advises clients on industrial relations, employment negotiations, labour dispute resolution and change management. He also advises companies on organizational restructuring. Prior to joining Baker McKenzie, Mr. Botes was a director and partner at a leading South African law firm.