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The effects of recent xenophobic attacks on foreigners have also been felt in the workplace. Apart from the expected increase in absenteeism and anxiety in the workplace, there have been reports of South African employees assaulting and threatening their fellow non-South African employees. These assaults and threats have typically been occurring outside the workplace and after working hours. Can disciplinary action be taken against the offending individuals?

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. For example, if an employee is involved in a drunken brawl in some hotel bar in his own time, the employer normally cannot take disciplinary action for the employee’s disorderly conduct. 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 working 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 that there are several factors that are relevant in determining whether an employee can be subjected to disciplinary action. In the Saal case reference was made to the Labour Appeal Court case of SA Polymer Holdings (Pty) Ltd t/a Megapak vs CWIU & others where employees were involved in an armed robbery after working hours and off the employer’s premises. The court found that an employer may assess the conduct in the context of the actual or potential effect in the work place and to the personnel and property of the employer. According to the court, the question is whether such conduct had the effect of destroying or seriously damaging the relationship between employer and employee. In establishing whether this is the case, the relevant factors includ

  • the nature of the conduct;
  • the nature of the work or services performed by the employee;
  • the potential effects which the conduct would have on the employer’s business and in particular its profile in the eyes of its clients and the public; and
  • the impact that the conduct may have on the relationship between the employee and his co-workers.

According to the court there might also be other factors that could influence the outcome. In this case the court concluded that the dismissal of the employees was justified.

In both the above-mentioned cases the misconduct was not directed at fellow employees. Notwithstanding that fact, dismissal was found to be justified in both cases.

In the event of xenophobic attacks or threats against fellow employees, there is clearly a direct impact on the relationship between employee and fellow 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 seriously infringes the constitutional 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 working hours. It is likely that a xenophobic assault, and perhaps even a serious threat, 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 then be better in such an instance to report the matter to the SAPS for further investigation.

Written by Jan Truter of

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