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17/07/2008 01:46 PM - (SA) When xenophobia reaches into the workplace 17-07-2008
Apart from the expected increase in absenteeism and anxiety in the workplace at the height of attacks, there were reports of South African employees assaulting and threatening fellow non-South African employees. These incidents have typically occurred outside the workplace and after working hours. As a general rule an employer does not have any say over an employee's conduct if it occurs outside the employer's premises and after working hours. There are, however, exceptions to this rule. In the case of Saal vs De Beers Consolidated Mines, an employee was dismissed for assaulting a domestic worker after hours, but off the employer's premises. In this case the test the CCMA commissioner used was whether the misconduct affected the employment relationship and the employer's business. The assault had taken place in a mine village and the employee knew it was against the employer's rules to assault a non-employee in the village. The dismissal was upheld. It would appear there are several factors relevant in determining whether an employee can be subjected to disciplinary action. In the Saal case reference was made to a Labour Appeal Court case where employees were involved in an armed robbery after hours and off the employer's premises. The court found an employer may assess the conduct in the context of the actual or potential effect in the work place and to the staff and property of the employer. In this case the court concluded that the dismissal of the employees was justified. In the event of xenophobic attacks or threats against employees, there is clearly a direct impact on the relationship between employees. But what if the employee challenges the existence of a workplace rule, or claims to be of unaware of such rule? This is not likely to be a sustainable defence, as xenophobic attacks amount to criminal conduct that also infringes the rights of others. In determining the fairness of the application of a rule, it is sufficient to show that the employee could reasonably be expected to be aware of the rule. Employees can surely be expected to be aware of an unwritten rule prohibiting xenophobic attacks on fellow employees, even if they occur outside the employer's premises and after hours. It is likely even a serious threat of attack would in most instances render continued employment intolerable. If an employee is found guilty of such conduct, dismissal would be the likely outcome. However, in the event of an employee being involved in a xenophobic attack on a non-employee, disciplinary action would not be appropriate - it would be better to report the matter to the police. Truter is a founder of www.labourwise.co.za, an online labour relations service.
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