OFF DUTY MISCONDUCT – TO DISCIPLINE OR NOT TO DISCIPLINE – KAREN FULTON & EVA MUDELY

OFF DUTY MISCONDUCT – TO DISCIPLINE OR NOT TO DISCIPLINE – KAREN FULTON & EVA MUDELY

 
Generally, what an employee does after work hours is of no concern to his employer, who has no right to institute disciplinary proceedings against an employee unless it can be shown by the employer that it has some interest in the conduct of the employee outside the workplace.
 
There would normally be such an interest where some nexus exists between the employee's conduct and the employer's business. In the absence of that nexus, the employee's conduct is likely to be non work-related conduct, or, as it is sometimes termed, ''off-the-job conduct”.
 
It has been accepted that where an employee’s misconduct occurs off an employer’s premises but impacts on the workplace, the employer is entitled to take disciplinary action against the employee. In these circumstances, the employer has to establish that it has a legitimate interest in the matter – for example, the misconduct is disruptive to the employer’s business or affects the employer's reputation.
 
The line between work-related misconduct and non-work related misconduct can sometimes be blurred. Thus, for instance, it may be none of the employer’s business when an employee commits a fraud on his home loan application form or vehicle finance application form by inflating his salary. However, if this employee commits such fraud by altering his payslip, the fraud may impact on the reputation of the employer’s business.
 
In cases of off-duty misconduct, where an employee has been found guilty of an act of domestic violence or malicious injury to property, it may be difficult to show that such misconduct impacts on the reputation of the employer’s business. However, if the employee concerned is the managing director of a company, the employer may be able to show otherwise.
 
When disciplining an employee for off-duty misconduct, the employer would have to show that the employee’s off-duty misconduct is of relevance to the workplace.
 
Our courts have suggested 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 or continuity of business of the employer. In the case of an employee who is found guilty of, say, drunken driving, it may be difficult to show that such conduct has a negative effect on the business of the employer.
 
However, the situation will be different if the employee concerned holds the position of marketing manager in a company that manufactures alcoholic beverages, and promotes responsible drinking.
 
In cases of more serious off-duty misconduct, such as murder, rape, attempted murder or attempted rape, where the employee has been arrested by the authorities and not granted bail, the question is not so much about whether or not the employee’s off-duty misconduct is of relevance to the workplace, but rather about an employee being absent from work for a protracted period of time.
 
In such circumstances, what options does an employer have? We will look at the answers to this question next month.
 
Karen Fulton is a director and Eva Mudely is a senior associate at Bowman Gilfillan Inc.