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Can employers discipline employees for conduct outside of the workplace that involves recklessly exposing themselves to COVID-19?

25 March 2021 Michael Yeates, Director, Kgodisho Phashe, Associate and Shanna Eeson Candidate Associate in the Employment Practice at Cliffe Dekker Hofmeyr

Due to the unique and unprecedented times we have found ourselves, employers are required to adhere to the Occupational Health and Safety Act 85 of 1983 (OHSA) read with its regulations.

In terms of the OHSA, employers are required to provide and maintain as far as is reasonably practicable a working environment that is safe and without risks to the health of workers and to take such steps as may be reasonably practicable to eliminate or mitigate the hazard or potential hazard of the Coronavirus.

The OHSA further requires employers, to ensure, as far as is reasonably practicable, that all persons who may be directly affected by their activities (such as customers, clients or contractors and their workers who enter their workplace or come into contact with their employees) are not exposed to hazards to their health or safety. Non-compliance by employers in this regard could result in the employer facing hefty consequences such as fines, legal action that could lead to imprisonment, and shutdown orders, depending on the nature and severity of the transgression.

It is a long-established principle in labour law that a transgression of the employer’s health and safety policies and procedures, will lead to disciplinary action and may justify the termination of the transgressing employee’s employment.

The question of whether employers have the right to discipline employees for reckless (or even unlawful) conduct such as failing or refusing to wear a face mask in a public setting or on public transport, and consequently potentially exposing themselves to the highly infectious coronavirus disease “outside of the workplace” arises.

This question is pertinent to the high likelihood of the employer suffering reputational damage, if the employee’s conduct can be traced back to the employer, or the respective employee potentially contracting the virus and causing the spread thereof within the workplace.

It is important, however, at this stage to distinguish between an employee becoming sick in the ordinary course and an employee who intentionally flouts the preventative measures put in place by the South African Government in order to curb the transmission of COVID-19. There is no general duty on any employee to avoid getting sick in the ordinary course. However, in terms of Government regulation, it is an offence to, for example, not wear a face mask in public.

Generally, disciplining employees for misconduct outside of the workplace as a whole is usually not as straight forward as it may seem. The general rule in these circumstances is that actions performed outside of the workplace and working hours are beyond the scope of the employer’s disciplinary authority. This is based on the premise that the private lives of employees are usually of no concern to their employers and resultantly employers have no right to dictate the conduct of employees outside of their working hours. However, disciplinary action for an employee’s extramural conduct may be justified in certain circumstances, namely when a connection can be established between the extramural misconduct of the employee and the negative impact that this conduct has on the employer’s business or the employment relationship.

There are a number of cases that support this stance. In the most recent case of Edcon v Cantamessa (2020) 41 ILJ 195 (LC) the court held that the posting of a racist comment on Facebook by a senior employee whose Facebook page identified her as an employee of the employer, justified disciplinary action even though she had used her personal computer whilst on leave and outside the ambit of her working hours or workplace. The test that the court applied in this case was whether this misconduct affected the employment relationship and not whether the conduct at issue was covered by the employment contract. It is clear that in order to take disciplinary action against an employee for misconduct outside of the workplace it is sufficient if the employer can establish that it has a legitimate interest in such conduct and that the conduct in question affects the employment relationship. Moreover in the 2005 case of Tibett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), the court found that there is a standard of ethical behaviour that the employer does not need to remind the employee about and even if the misconduct is not included in the disciplinary code, the employee could still be disciplined for misconduct.

The above principles can similarly be applied within the context of COVID-19 in the workplace. Besides employers’ obligations to provide a safe working environment for employees, there is a dual responsibility on employees to also comply with these standards. Therefore, by potentially exposing oneself to COVID-19, in contravention of the established legislative preventative measures, will be in contravention of the ethical behaviour that the employer need not remind the employee about in terms of taking reasonable precautions to curb the spread of the coronavirus.

Moreover, the fact that the employee’s conduct may result in a potential outbreak at the place of business would naturally concern an employer, who not only has a statutory duty to ensure a safe and healthy working environment, but will also be concerned with productivity of employees, unplanned payment of sick leave or even death of vulnerable employees and the economic risk of having to shut down the place of business.

Dealing with misconduct out of the workplace is difficult
All things considered, the challenge is describing the misconduct outside the workplace and framing the charges because most disciplinary codes focus on misconduct perpetrated at work and hardly cover misconduct out of the workplace. To overcome this challenge the employer must prove that the rule the employee broke is so obvious and well-known that there was no need to communicate it. Alternatively, it is advisable that the employer provides for such in the disciplinary code that employees can be disciplined for external misconduct in relation to employees acting unlawfully and thus exposing themselves to COVID-19 because of the huge risk this poses to the business of the employer as well as health and safety of employees and the general public.

The employer should inform employees that they are free to do as they please when they leave work, but that they should continue to act in accordance with the law and not act in a manner that will negatively affect their job or the health and safety of fellow employees outside of the workplace.

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