Can you summarily dismiss employees involved in looting?

Recent WhatsApp messages contained details of the alleged involvement of a prominent figure in a financial services business in the looting of items during the recent civil unrest.

According to News24, the individual concerned denied that he was part of the mass looting.

“I moved into a new place beginning of July. I was buying my furniture… and they just flipped this whole thing on me. I was moving furniture [on Tuesday] to my place and I’ve got all my receipts,” he told News24 on Friday.

The board of the company he works for said that he was suspended with immediate effect, pending the outcome of his criminal case and an independent investigation into allegations against him.

Whilst jumping to conclusions based on scanty evidence currently qualifies as a major contender for inclusion in the Olympic games, it would be best to first consider the legal ramifications.

ENSAfrica published an article titled Can employers dismiss their off-duty employees for taking part in looting? which provides details of the legal requirements to implement steps against staff members suspected of such transgressions.

The information below is sourced directly from the ENSAfrica article linked above.

South African courts have held that off-duty misconduct can, in certain circumstances, constitute a valid reason for dismissal. This is even more pertinent where:

  • the employee’s misconduct constituted a criminal offence,
  • the employee’s behaviour involved gross dishonesty and corruption, and
  • the nature of such resulted in the destruction of the relationship of trust between the employee and the employer.

The Code of Good Practice on dismissals provides that there has to be “relevance” to the workplace. The test determining whether this applies is 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; and
  • the employer must have a sufficient and legitimate interest in the conduct or activities of the employee outside working hours or outside the workplace.

Accordingly, if a nexus and interest exist, an employer will be entitled to take disciplinary action against an employee for their off-duty misconduct.

South African courts have identified that a nexus between the employee’s off-duty misconduct and the employer’s business exists where the employee’s conduct has a detrimental or intolerable effect on the efficiency, profitability, continuity or good name and reputation of the employer’s business.

There are many conceivable instances where there could be a connection between looting employees and their employer’s business. These include where:

  • the employee is wearing their work uniform while looting and is therefore identifiable as an employee of the employer
  • the employee, absent of their uniform, is identifiable as being associated with the business. This might be particularly true for employees who are considered “the face” of the business – including management, sales staff and staff used in marketing campaigns; and/or
  • the nature of the offence impacts on the employee’s duties or on the operation of the business. For example, the identified employee works in a retail store and as such, is entrusted with the employer’s stock.

What this means for employers is that the mere fact that an employer has identified employees in the looting footage does not mean that they automatically have a right to discipline or dismiss them. In these emotionally charged times, employers should evaluate each of these situations with a level head, ensuring that a nexus exists between the looting and the employer’s business in every instance that the employer elects to take action.

This, of course, presumes that there is a business to which employees could return.

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