As a consequence of the pandemic, Companies have had to put in place health and safety warnings, advice, protocols, policies and procedure at the workplace, related to Covid-19, in order to curb the spread of the virus and to ensure the health and wellbeing of all of its employees and not just any employee who has contracted Covid .
What happens if some employees choose to ignore these measures taken by an employer?
This was considered in the case of Eskom Limited v Stuurman Mogotsi and Others (JR1644/20) [2021] ZALCJHB 53 where the background factsare as follows:
- Stuurman Mogotsi an employee (“the employee”) of Eskom Limited was an assistant manager and a member of the in-house “Coronavirus Site Committee”.
- He used to travel to work with a fellow employee. During July 2020 the fellow employee started to not feel well and later was tested positive for Covid-19.
- Around the same time the fellow employee fell ill, the employee also started experiencing chest pains, headaches and coughs. He was later booked off by a traditional healer. At this time the employer instructed the employee to stay at home but the employer reported for duty.
- During August 2020 the employee took a Covid-19 test and the results came back positive. The employer was informed of the employee’s positive results on 9 August 2020 however the employee had attended the employer’s premises to hand over the results and reported for duty on 7, 9 and 10 August 2020.
- On 10 August 2020 the employee was observed on a video footage at the workplace, hugging a fellow employee who had comorbidities and walking around the workshop without a mask, whereafter he was sent home by the employer.
- The employee returned to work on 28 August 2020 and subsequent to a disciplinary hearing, he was dismissed for gross misconduct.
The employee referred his unfair dismissal dispute to the CCMA and the Commissioner found that the dismissal of employee was unfair in light of the employer’s own disciplinary code and procedures.
The Commissioner stated that the employer did not have any instructions or rule that expressly compelled its employees to inform it when they had undertaken COVID-19 tests. The only rule in place was that the employees were to inform the employer when they suspect that they had been infected. This rule therefore implied that the employees had to inform employers of their COVID-19 tests. The Commissioner then found that the employee was grossly negligent in failing to report the test to the employer and ruled that the employee was to be retrospectively reinstated, without back pay and a final written warning placed on his record.
On review the Court set aside the Commissioner’s award and substituted it with an order that the dismissal of the employee was substantively fair.
The Court found that the employee had completely disregarded the workplace Health and Safety protocols. As a member of the in-house “Coronavirus Site Committee” the employee was responsible for, inter alia, putting up posters throughout the workplace, informing all employees what to do and what not to do in the event of exposure or even if they suspected that they may have been exposed to COVID-19, and the symptoms they must look out for.
It was further held that a disciplinary code and procedure is not prescriptive, it is merely a guideline in so far as sanction is concerned. An assessment of the nature of the misconduct in question must be made to determine if whether, combined with other factors and the evidence led, the misconduct in question can be said to be of gross nature. Therefore taking into consideration the care-free attitude of the employee that put at risk his fellow employees and their families in addition to his own, the Court held that the dismissal was fair.
Employers need to take a firmer stand in ensuring that all COVID-19 health protocols are adhered to and those disregarding these rules are disciplined accordingly.
Employers are urged to seek legal advice before going ahead with these policies and procedures to accommodate the new challenges posed as a consequence of the pandemic as there is a minefield out there.
NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za
