OPINION: Can your employer discipline you for misconduct in the silly season?

Something about the festive season creates a 'buzz' of excitement. More often than not, it is this buzz which makes the festive season that much more memorable.

Unfortunately, this can sometimes lead to reckless decisions by employees, which may influence whether they successfully return to work in January.

This is because even during the festive season employees still carry an employer’s flag - a flag which they are expected to uphold. Below are some of the examples of instances where the employer may be permitted to take disciplinary steps against employees.

Beware the year-end function

Year-end functions or office parties have been regarded as a gateway to the festive season where employees get together in celebration of the year they have left behind.

However, there may be instances where misconduct such as rude behaviour occurs during these functions. The Intraspeed SA (Pty) Ltd v T Boyce N.O. and Others case is an example of such misconduct.

The conduct complained of was that of an employee who asked his wife to send an email to his colleague which read 'F**k You Thank You' (sic) in response to a query from his colleague.

Although this was meant to be a joke, the employer took disciplinary steps.

Overestimating bargaining power

Given the decreased number of available employees during the shutdown period, employees may use this opportunity as a bargaining tool when it comes to their salaries.

In Seardel Group Trading (Pty) Ltd t/a Romatex Home Textiles v Petersen and Others, the employee was dismissed for failing to obey a lawful instruction in that the employee refused to perform maintenance work during the employer’s annual shutdown period at his normal rate and insisted on a higher rate.

The dismissal was held to be fair as the employee was not on leave during the shutdown period.

(Anti)social media

Social media is an important part of the festive season because employees will no doubt be showing off what they get up to during the holiday period.

Where the content posted on social media becomes unacceptable and in violation of the employer’s policies, employers can take disciplinary action for this misconduct. CDH recently published an alert dealing with racist comments made on social media by an employee

The basis for taking disciplinary action for conduct that occurred away from the workplace, especially during the festive season, is that employers are not precluded from holding their employees accountable for their off-duty conduct where there is a connection between the employee’s conduct and the employer’s business.

As a result of this, the employer can exercise discipline over the employee for their off-duty conduct during the festive period. A key factor would then be to what extent the off-duty conduct has impacted the employment trust relationship.

Michael Yeates is director, employment practice at Cliffe Dekker Hofmeyr. Arlina Ramothar is a candidate attorney.

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