Employee looting and/or violence can take place during strike action or it can occur during non-workplace incidents such as the recent looting and public disorder sprees. In both cases employers need to take action, but with care.
Addressing firstly the “strike” scenario, employees have strongly entrenched rights when it comes to taking industrial action. But strikers who indulge in, or associate themselves with, any form of violence or intimidation can expect little sympathy from our courts.
Two Labour Appeal Court decisions illustrate –
Dismissed for associating with a crowd assault
“Within a labour law context the requisite intention exists where it is proved that an employee intended that misconduct would result or must have foreseen the possibility that it would occur and yet, despite this, actively associated himself or herself reckless as to whether such misconduct would ensue” (extract from the judgment below)
First up is the case of 148 workers dismissed for misconduct during a strike.
Dismissed for carrying sticks, piping, and a sjambok in a picket line
“The constitutionally protected right to strike does not encompass a right to carry dangerous weapons on a picket line which, by their nature, not only expose others to the very real risk of injury, but also serve to threaten and intimidate” (extract from the judgment below)
The second case saw a group of employees dismissed after taking part in a national strike which turned violent.
What about off-duty employees who took part in the recent public looting?
Published images and videos of the recent orgy of public looting and destruction show criminal behaviour so blatant and shameless that many of the perpetrators will no doubt be readily identifiable by their employers.
You may feel justified in proceeding immediately against any of your employees so implicated, even though they happened to be off-duty and nowhere near your workplace at the time. After all, who wants a looter or arsonist working for them?
But whilst our laws may well entitle you to take action against some or all of such employees, that will generally be so only when their provable criminality is in some way linked to, and relevant to, their employment. The law in this regard is unfortunately too complex, and too full of grey areas, for any advice beyond the general observation that you should certainly consider immediate disciplinary action, with the strong caution that specific professional advice is essential beforehand.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)