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Employers have rights

09 September 2004 Angelo Coppola

The employer's right to act against employees as a result of non-work related conduct.

No one can deny that technological advances, globalisation and the changing dynamics of work and the workplace have significantly altered the traditional employment relationship.

Anastasia Vatalidis - a director at Werksmans Attorneys - says that the notion that an employee's professional and private life should at all times remain separate no longer has any relevance today where employees across different disciplines are expected to commit more of their private time attending to work related matters. 

With the assistance of technology not only are we working longer hours but the work is often performed outside of the traditional office.

It is inevitable that when work increasingly encroaches on our private lives, time and space that our personal circumstances and problems will also encroach on our work. 

In recognition of the fact that employees' personal circumstances must be acknowledged and accommodated in the workplace, employers are compelled by law to grant employees at least three working days paid leave, in additional to their annual leave, to attend to their family responsibilities. 

Furthermore when an employee becomes incapacitated due to illness or injury, his or her employer must make every reasonable effort to accommodate the employee's condition before dismissal can be contemplated. 

The employer's obligation to assist and accommodate employees also applies where an employee is suffering from  drug addiction or alcoholism.

As the line between personal and working time and space becomes blurred employers are paying closer attention to their employees' conduct outside the traditional office and  traditional working hours. 

Understandably this infringement is being resisted by employees particularly in the light of the right to privacy entrenched in the South African Constitution. 

This conflict raises the question: "Can an employer hold its employees accountable for conduct which falls outside the course and scope of their employment?"

The employer's right to discipline or even dismiss its employees for non-work related misconduct has been considered by our courts.

They (courts) have found on more than one occasion that an employer may discipline and even dismiss an employee for non-work related misconduct in circumstances where the employee has been convinced of a criminal offence provided the employer can demonstrate that the conviction for that particular offence makes the individual unsuitable for employment. 

Even where there has not been a criminal conviction our courts have taken the view that if an employee assaults a fellow employee or if employees engage in a fight outside of the workplace and outside of the course and scope of their employment that would entitle the employer to take action. 

Employees need not commit a criminal act in their private capacity for the employer to step in and take action. 

When considering that all employees have an obligation to conduct themselves in a manner which does not compromise the employer's reputation, if an employee, particularly a senior employee closely associated with the employer, conducts himself or herself in a manner which affects the employer's credibility or reputation ,that employer would be within its rights to act against the employee even if the incident occurred outside of the employee's course and scope of employment. 

In truth, whether an employee can be dismissed for non-work related misconduct would depend on whether the employer can demonstrate a link between the employee's misconduct and the employer's business. 

As with all dismissals the employer must prove that the employee's conduct, although not work related, had an adverse impact of its business and destroyed the trust which is inherent in the employment relationship.

The approach adopted in relation to non-work related conduct confirms that employers and employees can no longer separate entirely their professional and personal personas and that both parties must be mindful of and take into account each other's interests and circumstances, not only at the workplace or during working hours but throughout the course of the employment relationship. 

At a time where work pressures and commitments are placing increasing demands on employees' personal time and space, knowing that employers must in turn be sympathetic to their employees' personal circumstances should give employees some comfort. 

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The second draft amendments to Regulation 28 will allow retirement funds to allocate up to 45% of their assets to SA infrastructure, with a further 10% for rest of Africa; but the equity & offshore caps remain unchanged. What are your thoughts on the proposal?

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