The legitimacy of dismissals for off-duty misconduct in South African labour law

Abstract

The main aim of this thesis is to solve the uncertainties brought about by dismissals for off-duty misconduct. First, it should be acknowledged that the world as we know it has changed and continues to evolve. Dismissals have been significantly impacted by the use of social media outside the workplace. The legalisation of the use of cannabis by an adult person has also brought uncertainties in the way dismissals are handled, especially in cases where an employee consumes cannabis off-duty. These two aspects have significantly influenced dismissals for off-duty misconduct in South Africa, with employees alleging that their rights to privacy, dignity and freedom of expression are infringed.

The thesis reveals that regardless of these modern changes, off-duty misconduct dismissal is still governed by the generic provisions of the Labour Relations Act 1995 and its Code of Good Practice: Dismissal. The thesis underscores the lack of clarity regarding the regulation of dismissals for off-duty misconduct in South Africa. Furthermore, despite the judiciary’s establishment of tests (the nexus test and the breakdown of the employment relationship), challenges in adjudicating off-duty misconduct cases persist.

This thesis analyses the South African legal framework governing dismissals for off-duty misconduct. The research investigates the evolution of South African dismissal law, tracing its development from the pre-democratic era to the post-democratic era. This investigation scrutinises the shifts in the legal landscape regarding dismissals for off-duty misconduct. The analysis encompasses a range of legal instruments pertinent to South Africa, including legislation, international law, common law, and judicial precedent.

The current need for a Code of Good Practice for off-duty misconduct dismissal is highlighted. This rationale is prompted by a comparative examination of other countries where, despite the absence of specific codes addressing off-duty misconduct, a proactive stance has been adopted to safeguard employees’ off-duty rights by enacting relevant legislation. These chosen states have statutes regulating employees’ off-duty conduct and clarifying which conduct is protected and in which circumstances.

Consequently, the thesis proposes a Code of Good Practice: Dismissal for Off-duty Misconduct. This Code would assist in the uniformity of application of relevant aspects in determining the fairness of dismissals for off-duty misconduct, thus alleviating labour suits concerning this type of dismissal. The Code would also provide employers with guidelines on how to draft off-duty misconduct policies without infringing employees’ constitutional rights.