How employee’s misconduct after hours could affect the employment relationship during the national lockdown.

Commentary by Karabo Teffo – FEOSA

While night clubs are still closed to the public in accordance with Regulation 56 of the Disaster Management Act as amended by Adjusted Alert Level 2 on 13 September 2021, more and more South Africans are hosting social gatherings in the comfort of their homes. These get-togethers/” chillas” qualify as social gatherings as classified by Regulation 53 of the Act (as small as they may be deemed) and every person in attendance must still accordingly comply with the regulations and protocols.

We have witnessed government officials who contravened COVID-19 lockdown regulations punished as in the matter of the Minister of Communications and Digital Technologies – Ndabeni-Abrahams earlier in the year. Now, in the recent case of another civil servant in Police and Prisons Civil Rights Union obo Mtombeni v South African Police Service (2021) 9 BALR 913 (SSSBC) the dismissal of a member of SAPS crime intelligent services was found to be fair on the grounds of a breach of COVID-19 regulations/protocols and attending a party with known gangsters.

Regulation 64 of the Disaster Management Act sets out that any person who contravenes the Act commits an offence and is on conviction, liable to a fine or imprisonment for a period not exceeding six months or to both such fine and imprisonment. It is then important for employees to remember the implication such criminal conduct could have on the employment relationship as punishable misconduct. This is essentially critical because an employee’s conduct after hours could bring the employer’s reputation into disrepute, especially in today’s era of social media.

According to Code of Good Practice on Dismissal (Item 7 (a) of Schedule 8), any contravention of a rule regulating conduct in the workplace, or which is relevant to the workplace, is misconduct and warrants a disciplinary hearing. An employer may subject employees to disciplinary proceedings for a misconduct committed outside of the workplace to an extent that it affects the employment relationship as aforementioned and poses a risk to business. Contravention of the COVID-19 regulations/protocols is unlawful conduct, should an employee be charged by the authorities an employer can elect to suspend the employee for misconduct pending the criminal case and an eventual termination of the employment contract may be contemplated.

So, just before you kick off your heels or loosen your tie for this long braai weekend, remember the below regulations and protocols are still effective during your get-togethers.

• Adhere to the curfew hours as provided for by Regulation 50 – every person is confined to his or her place of residence 23h00 – 04h00 daily;
• Wear your face mask;
• Adhere to all health protocols;
• Maintain a distance of at least one and a half meters from each other;
• Comply with the permitted limits on the number of people attending gatherings depending on the capacity of a venue.

Lastly, employees must always be mindful of their associations – you’re known by the company you keep after all!