Do employers have control over their empoyees’ actions away from the workplace and after hours?

2.18.2022
BackBusiness

Employers may feel powerless to deal with employees who have committed offences away from the workplace and after work hours but which may still bring the company’s name into disrepute through mere association with those individuals.  

Employers are ordinarily not able to discipline staff when they have conducted some transgression in their private lives, and they will for that reason take solace in the recent decision in the case of Makhoba v Commission for Conciliation, Mediation and Arbitration and Others (1280/17) [2021] ZALCD 69 (13 September 2021).

Mr Makhoba was an employee of Clover for a decade, Clover received a report by a member of the public that the applicant had posted on the Facebook page of Eyewitness News that “Whites mz b all killed”.

Clover charged him with making a racial comment on social media and for acting contrary to the interests of the company, Mr Makhoba was subsequently dismissed by Clover.

At the CCMA, the Commissioner decided that the dismissal had been both procedurally and substantively fair. The Commissioner stated:

“With regard to substantive issues, it is very clear that the incident which gave  rise to the charges, was extremely serious. The applicant made a public social media comment that all white people should be killed. In a country like South Africa, which has suffered for hundreds of years from racism, it is a grossly offensive form of racist misconduct to call for members of one race group to be killed. Aside from the fact that the company's disciplinary code provides that dismissal is the appropriate sanction for making racist comments, any person who lives and works in this country, or indeed in any society, must be presumed to be aware that to call for the killing of all members of a particular race group is a shocking form of misconduct. The only appropriate sanction for such misconduct is dismissal.”

Mr Makhoba took the matter on review to the Labour Court to overturn the Commissioner’s decision, but the Court found that the Commissioner had acted reasonably in making its decision and stated:

“The gravity of the offence, and the fact that the courts have stated loudly and clearly that racism in the employment context will not be tolerated, were adequately dealt with by the commissioner. The evidence before the commissioner was that the applicant had been in the company for 10 years, he had been inducted and trained on the respondent’s disciplinary code, and that even if there was no disciplinary code in the company, any employee would know that it was an extremely serious offence for a member of one race group to call for the killing of all members of another race group. The respondent had a multicultural workforce and the applicant’s comment had no place in the workplace”.

This judgement not only uplifts South Africa’s democratic values but it also empowers employers to deal with those employees who do not fit into the company’s culture and who potentially taint the name of their employer.

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