Criminal conduct outside the workplace

Where the criminal conduct takes place outside the workplace, it is sometimes more difficult to establish the necessary detrimental effect the crime could have on the employment relationship. It may be that the elements of the crime bear no relevance to the nature of the employee's job and it could be harsh to terminate the contract as a result. A non-work related conviction for drunk driving, for example, while negligent and irresponsible conduct, could not normally justify the dismissal of an employee who works as a green-keeper. It could be a different matter if it could be shown, for example, that it was essential for the green-keeper to have a driver's licence and this had been suspended as a result of the conviction.

Where, however, it can be shown that a criminal conviction impacts on the employment relationship because there is a direct and definite link between the two, a dismissal is easier to justify.

An example would be the conviction of your accountant or book keeper on an honesty related offence such as shoplifting from the local dairy. The offence, though not occurring in work hours or at the workplace, would clearly undermine the employer's trust and confidence in the employee.

Where the nature of this offence is such that it brings discredit to the employer in the form of very bad publicity (which happened in a case involving the conviction of a flight attendant, who admitted using cocaine), it was held justifiable to dismiss her for this reason even though her conviction was ultimately discharged.

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