Article 15/2023

What are the factors to be taken into account to determine whether misconduct committed outside the workplace, not in execution of duties and outside working hours, including the use of social media, could be addressed by an employer and be subject to disciplinary procedures?

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  • The first issue to be appreciated is to understand that dealing with misconduct outside the
    workplace, when not in execution of duties and outside of working hours, entails a standard of
    ethical conduct to be observed that is so obvious that employees need not be reminded of same
    in any disciplinary code, e g it is obvious to everyone that racial comments cannot be made on
    Facebook outside the workplace and outside working hours

(Tibbett and Britten v Marks (2005) 26 ILJ 940 (LC))

  • Secondly, it is important to also appreciate that disciplinary action can only be taken if a sufficient nexus or bearing on the employment relationship has been established

(Biggar v City of Johannesburg (2017) 38 ILJ 1806 (LC))

  • Thirdly, it is important to also appreciate that the existence or otherwise of such sufficient nexus
    entails a multi-faceted enquiry with reference to, inter alia, the following factors:

    • the size of the employer
    • the nature and size of the workforce
    • the nature of the work performed by the employer and the relevant employee
    • the capacity of the employee to do the job
    • the position of the employer in the marketplace and profile
    • the relationship between the employee and the victim
    • the impact of the misconduct on the workforce
    • the relationship between the employer and the employee

(Hoechst v CWIU (1993) 14 ILJ 1449 (LAC), Edcon v Cantamessa [2020] 2 BLLR 186 (LC),
Makhoba v CCMA (2022) 33 SALLR 10 (LC))

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).