Generally, employers will not have the authority to discipline employees for actions performed outside of the workplace and working hours. The reason for this is quite simply that the private affairs of employees are of no interest to the employer who is not allowed to prescribe the conduct of employees outside of the workplace.
But what if this “outside conduct” of the employee negatively effects the employers business or the employment relationship? Can disciplinary action for this external conduct be justified? In the matter of Edcon v Cantamessa (2020) 41 IJL 195 (LC) the court held that the posting of a racist comment on Facebook by a senior employee whose Facebook page identified her as an employee of the employer, justified disciplinary action even though she had used her personal computer whilst on leave and outside the ambit of her working hours or workplace. The test that the court applied in this case was whether this misconduct affected the employment relationship and not whether the conduct at issue was covered by the employment contract.
In the matter of Tibett & Britten (SA) (Pty) Ltd v Marks & others (2005) 26 ILJ 940 (LC), the court held that there is a standard of ethical behavior that the employer does not need to remind the employee about and even if the misconduct is not included in the disciplinary code, the employee could still be disciplined for misconduct.
The above principles can likewise be applied within the context of COVID-19 in the workplace. If an employee carelessly exposes him or herself to COVID-19, it will constitute a breach of the ethical behavior that the employer does not need to remind the employee about. Apart from that, there also rest a public responsibility on the employee to adhere to government regulations, such as the wearing of a face mask in public. Any person who fails to do same, acts in contravention of such regulation.
The roll over effect of an employee who carelessly acquire COVID-19, is that it could result in an outbreak at the employers place of business who will, firstly, negatively influence the productivity of the employer’s business, and secondly, exposes the employer to further liability as he or she has a statutory duty to ensure a safe and healthy working environment in terms of the Occupational Health and Safety Act 85 of 1983.
For an employer to succeed with disciplinary action against an employee who carelessly exposes him or herself to COVID-19 outside of the workplace, the employer will have to prove that the instruction the employee failed to obey, is so obvious and well known, that it does not require any further communication on same.
It is however advisable that employers make provision for these instructions or rules, pertaining to outside conduct of an employee, within its disciplinary code. The message to employees must be clear that they are free to act as they wish outside the workplace, but there rests a responsibility on them to act in accordance with the law and not in a way that will negatively affect their employment, or the health and safety of fellow employees.