A common question in South African labour law is whether an employer may dismiss an employee for misconduct that occurs outside the workplace and while the employee is off duty.
While employers may discipline employees for off-duty conduct in certain circumstances, the key issue is whether there is a sufficient connection (or “nexus”) between the misconduct and the employer’s operational interests.
This issue was recently considered by the Labour Court of South Africa in the case of IMATU obo Sauls v City of Cape Town and Others.
Background to the Case
The employee was a Learner Law Enforcement Officer employed by the City of Cape Town.
Whilst off duty and driving his private vehicle, he was arrested for driving under the influence of alcohol.
The criminal matter was dealt with through a deviation programme, meaning that the employee did not obtain a criminal record.
Despite this, the employer proceeded with disciplinary action and ultimately dismissed the employee.
The dispute proceeded to arbitration before the South African Local Government Bargaining Council, where the key question was whether the employee’s off-duty misconduct justified dismissal and whether there was a connection between the drunken driving incident and his operational role as a law enforcement officer.
The Review Application in the Labour Court
The employee subsequently took the arbitration award on review to the Labour Court.
He argued that the decision to dismiss him was disproportionate and unfair, relying on several key factors:
- The incident was a first offence committed while off duty.
- There was no evidence of reputational damage to the employer.
- A similar incident involving a senior officer had resulted in reinstatement despite higher alcohol levels and resistance during arrest.
- The employer had no policy governing off-duty alcohol-related misconduct.
- Progressive discipline had not been meaningfully considered.
The Key Legal Issue: The “Nexus” Requirement
The central legal issue before the Court was whether a sufficient nexus existed between the employee’s off-duty conduct and the employer’s operational interests.
In labour law, off-duty misconduct will generally only justify dismissal if it:
- Impacts the employee’s ability to perform their duties,
- Causes reputational harm to the employer, or
- Undermines the trust relationship between employer and employee.
Labour Court’s Findings
The Labour Court found that the arbitrator had failed to properly consider several important factors, including:
- The employee’s clean disciplinary record.
- The previous similar incident involving another officer.
- The principle of progressive discipline.
- The absence of evidence of operational harm or workforce impact.
- The lack of evidence that the incident had public visibility or reputational consequences.
- The employee’s early career status as a learner officer.
The Court further held that the arbitrator had:
- Drawn inferences not supported by evidence.
- Taken irrelevant considerations into account.
- Overlooked material mitigating factors.
Importantly, the Court found that no rational basis existed for concluding that a nexus existed between the off-duty conduct and the employee’s ability to perform his duties.
Outcome of the Case
The Court held that the arbitration award was unreasonable.
As a result, the dismissal was found to be substantively unfair, and the employee was retrospectively reinstated without any loss of benefits.
Key Lessons for Employers
This judgment provides important guidance for employers dealing with off-duty misconduct in the workplace:
- Off-duty conduct does not automatically justify dismissal.
- Employers must establish a clear nexus between the misconduct and workplace interests.
- Evidence of operational harm, reputational damage, or impact on trust is often required.
- Consistency in discipline is critical.
- Progressive discipline should be considered, particularly for first offences.
Conclusion
While employees are not entirely beyond the reach of workplace discipline when they are off duty, employers must demonstrate that the misconduct meaningfully affects the employment relationship or the employer’s operational interests.
Without such a connection, dismissal for off-duty misconduct may be found to be substantively unfair.
Article written by Craig Berkowitz
23 January 2026
Craig Berkowitz is a specialist labour lawyer and Acting Judge in the Labour Court of South Africa with extensive experience in CCMA arbitrations, disciplinary hearings and Labour Court litigation.
Tel: 083 453 1822
Email: cblaw@netactive.co.za
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