An incident that occurred on a South African airline flight in December 2024 sparked heated debate on social media and made news headlines. The incident involved an employee of the South African Broadcasting Corporation ("SABC") who was filmed disrupting a flight with several passengers onboard. Following the viral incident, the SABC issued a media statement in which it condemned the employee's behaviour and further confirmed that it would utilise its internal channels and procedures to engage the employee.
The main debate pertaining to this incident was centred around whether it was permissible for the SABC to extend its disciplinary reach against the employee in circumstances where the conduct had taken place away from the workplace and after working hours. Although there have been conflicting views in the court of public opinion on this topic, the law pertaining to off-duty misconduct is well-settled.
This is illustrated in the Labour Court's decision in Bam v Safety and Security Sectoral Bargaining Council and Others, where the Court had to determine the fairness of the dismissal of an employee who had been arrested for allegedly stealing items from Checkers Hyper's shelves. Notably, the alleged conduct which resulted in the employee's arrest had also occurred away from the workplace and not within employee's course and scope of employment.
Brief factual background
Sergeant Noreen Bam ("Sergeant Bam") was employed by the South African Police Service ("SAPS"). Sergeant Bam and her mother were arrested by the SAPS after they had been found in possession of stolen items from Checkers Hyper. Following Sergeant Bam's arrest, the SAPS charged her for:
- failing to uphold the interest of the employer by unlawfully removing items from the shelves of Checkers Hyper; and
- failing to act honestly by giving a false name and residential address when she was arrested.
Sergeant Bam was found guilty and dismissed. She subsequently referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council wherein she only disputed the substantive fairness of her dismissal.
The arbitration proceedings
During the arbitration, the SAPS led the evidence of Sergeant Vergotine, who had arrested Sergeant Bam and her mother and returned the stolen goods to the store. Sergeant Vergotine testified that Sergeant Bam had provided a false name and asked whether her mother could not take the blame and further asked not to be detained. Sergeant Bam did not contest this evidence.
The SAPS further called Colonel Dyers, the station commander, as a witness, who testified that Sergeant Bam did not report for work on the Monday after her arrest. Colonel Dyers first learnt of Sergeant Bam's arrest from the SAPS Parow police station later on that Monday. Colonel Dyers further testified that Sergeant Bam did not open up to her regarding the incident. As a result, she could not trust Sergeant Bam based on the serious nature of the misconduct.
The SAPS further called Ms Zinqxondo, a security officer at Checkers Hyper, as a witness. She testified that she saw Sergeant Bam and her mother loading items from a store trolley into a black and white bag and a baby bag. She only saw them pay for certain items at the till and further testified they did not pay for the goods contained in the bags. Ms Zinqxondo further explained that Sergeant Bam identified herself as 'Suzette Karelse', the name of a singer. The value of the stolen items amounted to over ZAR1,000.00. She further testified that Sergeant Bam also begged her to release them and offered to pay ZAR1,000.00 to pay for the stolen items, which included fresh meat to the value of ZAR440,00.
Sergeant Bam denied that she had identified herself as 'Suzette Karelse'. Rather, it was her mother who had identified herself in this manner and that this appellation had been her nickname as a child on account of her singing. Having considered the evidence, the arbitrating commissioner found that Sergeant Bam's dismissal was substantively fair.
Analysis of the Labour Court's decision
Aggrieved by the outcome, Sergeant Bam instituted an application in the Labour Court to review and set aside the arbitration award. Sergeant Bam sought to impugn Ms Zinqxondo's credibility as a witness on account of alleged inconsistencies in her evidence. However, the Labour Court found that the none of the raised inconsistencies could have altered the evidence of the unpaid goods which were found in their bags.
In relation to whether Sergeant Bam identified herself by her nickname as 'Suzette Karelse', the Labour Court found that Sergeant Vergotine's evidence and the documentary evidence supported the version that Sergeant Bam had indeed identified herself by her nickname. Sergeant Bam had further used the nickname when she confirmed the return of the goods to Checkers Hyper. Accordingly, the Labour Court dismissed the review application.
Comment
Notably, the Labour Court did not refer to any precedent pertaining to the justification of dismissal for off-duty misconduct. The Labour Court appears to have simply accepted that the SAPS, as the employer, was entitled to institute disciplinary action against Sergeant Bam.
Although this incident occurred outside of the workplace and after Sergeant Bam's working hours, this decision confirms that an employer's disciplinary reach can be extended beyond the workplace. Accordingly, off-duty misconduct is a well-accepted principle in our law. Where an employee has engaged in misconduct outside the workplace and after working hours, the employer is required to establish the nexus between the employee's conduct and the workplace. The onus then rests on the employer to establish that it has sufficient and legitimate interest in the employee's conduct.
In demonstrating the existence of the required nexus between the employee's conduct and the employer's business, the employer would need to prove that the employee's conduct has a detrimental or intolerable effect on the efficiency, profitability, continuity, good name and/or reputation on the employer's business.
As a result, employees should be cautious in respect of how they conduct themselves away from the workplace in circumstances where their conduct could potentially have an impact on the continuation of the employment relationship.
*Reviewed by Peter le Roux, an Executive in ENS' Employment Department
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