Is your link with your employer a permanent one? Addressing the question of off-duty misconduct

Is your link with your employer a permanent one? Addressing the question of off-duty misconduct

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Is your link with your employer a permanent one? Addressing the question of off-duty misconduct

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Employers must establish a clear nexus between the employee’s conduct and the employer’s operations, reputation, or working relationship.

In addition, the employer must demonstrate a legitimate and protectable interest in regulating the off-duty misconduct in question. Without both elements, disciplinary action and dismissal may be found to be substantively unfair.

This judgment illustrates that courts continue to emphasize the importance of carefully assessing these factors before taking action against employees for conduct occurring outside the workplace.

Thabang Rapuleng and Thato Maruapula in the Employment Law practice discuss the judgment.

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Transcript

Thabang Rapuleng: Welcome to the CDH Conversations podcast. My name is Thabang Rapuleng, Counsel in CDH's Employment Law Department. Today we will be unpacking the concept of off-duty misconduct and whether an employee can be subjected to disciplinary action for misconduct which took place outside of the workplace. Joining me today is Thato Maruapula, an associate at the CDH's Employment Law Department.

Thato, thank you for making the time to share your insights on this topic. 

As a starting point, what is off-duty misconduct?

Thato Maruapula: Thank you, Thabang,

Employees have a common law duty to act in the best interests of their employer. This extends to what employees do outside of their ordinary working hours and outside of the workplace.

The concept of off-duty misconduct refers to behaviour or actions that occurs outside of an employee's normal working hours or away from the workplace. At a first glance, what an employee does in their private life seems entirely separate from their job. However, our courts have confirmed that where there is a nexus or link between the off-duty misconduct and the employer's operations, reputation or the working relationship, an employer may take disciplinary proceedings against an employee.

This principle was confirmed in a number of judgments, including Hoechst (Pty) Ltd v Chemical Workers Industrial Union and Another, where the court held that an employer will take into account factors such as the nature of the work performed by the employee, the employer's size, the nature and size of the workforce, the employers position is the market place, the nature and size of the workforce as well as the capacity of the employee the perform his or her job.

In SA Police Service v Magwaxaza & Others the employee was a police officer who was in the employ of SAPS. The employee shot and killed a civilian during an altercation when the employee was off-duty. The employee was charged with misconduct by SAPS and ultimately found guilty and dismissed.

In Edcon Limited v Cantamessa and Others, the employee in question had posted a racially-charged comment on Facebook while on leave from a personal device whereby he critised the government. The court reiterated the concept of off-duty misconduct and found that there was a nexus or connection between the misconduct and the employer, despite the fact that the employee was on leave and used his personal device to commit the misconduct. The employee's dismissal was accordingly upheld.

Thabang Maruapula: Thank you so much, Thato. That's quite interesting. In fact, the judgments you refer to are one from 1993 and two are 2020 judgments. Have there been any recent judgements on this particular topic? 

Thato Maruapula: Yes. In 2026, the Labour Court has recently handed down a judgment in the matter of IMATU obo Sauls v City of Cape Town and Others. In this case, the employee was a trainee law enforcement officer who was employed by the City of Cape Town. The employee was arrested by his fellow colleagues for driving under the influence. The employer became aware of this incident and charged him with misconduct. He was ultimately found guilty and dismissed. The Bargaining Council found that the employee's dismissal was substantively fair. On review, the Labour Court revisited the concept of off-duty misconduct and discussed the authorities I referred to earlier to conclude that the award was not one that a reasonable arbitrator presented with the same set of facts and the legal framework would have made. The Labour Court accordingly reviewed and set aside the award with a finding that the employee's dismissal was substantively unfair.

Thabang Rapuleng: That's quite interesting taking into account that it's a legal . The Labour Court did not uphold the dismissal of a trainee law enforcement officer who was arrested for driving under the influence?

Thato Maruapula: Earlier I spoke about the nexus or link between the off-duty misconduct and the employer's operations.

Of importance, is that the court in the IMATU matter held that the nexus is not automatic. Put differently, the mere fact that the employee was employed as a learner law enforcement officer did not automatically create a nexus between the off-duty misconduct and the employer. The court emphasised the Hoechst judgment wherein the court held that there must be a nexus between the conduct and the operational requirements of the employer.

An employer must satisfy the factors of (i) a nexus between the conduct and the employer's operation and (ii) the employer must have a sufficient and legitimate interest in the conduct or activities of the employee outside of his/her working hours or outside of the workplace.

Thabang Rapuleng: Interesting. Any concluding remarks?

Thato Maruapula: The court's have readily incorporated the concept of off-duty misconduct into our law, however, this does not mean that every single conduct which took place outside of the workplace will warrant disciplinary proceedings. The court in IMATU made it clear that an employer must establish a nexus and second, must have a legitimate interest in the conduct, failing which, the dismissal will be found to be unfair. Employees are however also cautioned against engaging in conduct which may warrant disciplinary proceedings against them.

Thabang Rapuleng:  Thank you for your insights Thato.