Property Destruction - Can I “fire” my employee for looting?

Author: Dunstan Farrell (source: www.farrell.co.za )

Following the imprisonment of former President Jacob Zuma, various protests, destruction of property, and widespread looting have taken place in KwaZulu-Natal and in parts of Gauteng.

The use of cell phone cameras and video cameras have captured many of these devastating events in great detail, providing footage and photographs of the perpetrators committing various crimes.

A pertinent issue arises for an employer when an employee can be identified, or has been identified, committing a criminal act such as participating in looting or causing destruction to property.

CAN THE EMPLOYEE BE DISMISSED?

When an employer is able to identify an employee committing a crime outside of working hours and while off duty, an employer is not automatically entitled to dismiss the employee. While the majority of Kwa-Zulu Natal has been in a state of panic and disarray, the provisions of the Labour Relations Act 66 of 1995 (“LRA”) continue to apply to employment relationships.

Accordingly, the ordinary legislative requirements for a fair dismissal of an employee continue to apply, and an employer must deal with each employee on a case-by-case basis. Importantly, everyone is innocent, until proven guilty.

In the case of Maloka v Commission for Conciliation, Mediation and Arbitration and Others (JR2600/13) [2016], the Labour Court stated: -

“The court has also held in a variety of cases that off-duty misconduct can constitute a valid reason for dismissal. This is even more pertinent where the employee’s misconduct constituted a criminal offence, or where the employee's behaviour involved gross dishonesty and corruption, and where the nature of such conduct was to destroy the relationship of trust between the employee and the employer. This approach is in line with Item 7(a) of Schedule 8 of the Code of Good Practice: Dismissal, which provides that the contravention of a rule regulating conduct in the workplace or of relevance to the workplace as being capable of being the subject of disciplinary action. The test for determining relevance to the workplace is that the employer must have a legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace, and that there must be a link or nexus between the conduct complained of and the employee’s duties, the employer’s business or the workplace.”

Considering the above, there are important considerations for an employer, in determining whether to take disciplinary action against an employee for looting or participating in criminal activities. Such considerations include, among other things: -

1. Whether the employee has, in fact, committed a criminal offence (simply because an employee has been arrested, does not mean the employee committed a criminal offence)
2. The provisions of the employee’s contract of employment relating to criminal convictions
3. If a criminal offence was committed, the impact of the offence on the employer’s reputation or business; and 
4. The impact of the offence on the employment relationship, particularly considering the employer’s business and the employee’s position, duties and responsibilities

For example, should an employee present an employer’s business to the public, or be involved in sales, the employee’s unlawful conduct may significantly impact the employer’s reputation, providing prima facie justification for disciplinary action, on the basis of reputational detriment.

By way of another example, should an employee placed in a position of trust, such as an employee keeping stock or dealing with money, be identified as participating in looting, this would, prima facie, justify disciplinary action against the employee, on the basis that the trust relationship has been eroded by the employee’s unlawful actions.

In contrast, should an employee’s duties and responsibilities not involve the same level of trust, such as an employee working solely in general maintenance, the employee’s participation in looting would not, prima facie, erode the employment relationship.

CONCLUSION

In conclusion, we strongly suggest that employers do not resort to dismissal of an employee identified as committing a criminal act, without careful consideration of the substantive and procedural requirements of the LRA, and all the surrounding facts.

Feel free to contact [email protected] or Dustan Farrell at www.farrell.co.za if you wish to chat about your options. 

Courtesy: HR Torque

Author: Dunstan Farrell

Editor’s note: Thanks to Dunstan Farrell for allowing us to publish this letter. Our best wishes go out to all of you impacted by the KZN and Gauteng riots last week. Nkosi sikelel’iAfrika.