This ruling has implications for companies that have not updated their policies with Covid-19 protocols.
- By Mehnaaz Bux, Shane Johnson and Jenna Atkinson from Webber Wentzel
A recent judgment by the Labour Court, which upheld the dismissal of an employee who reported for work knowing that he had tested positive for Covid-19, is important for both employers and employees, as it highlights that employers should not be complacent about health and safety protocols in the workplace.
In summarising the case, Eskort Limited v Mogotsi [2021] JR1644-20 (LC), law firm Webber Wentzel noted the summary of the matter and the outcomes.
It was noted that the employer had Covid-19 policies and procedures in place and the employee was a member of the company’s coronavirus site committee.
- The employee started experiencing Covid-19 symptoms and was informed by management to stay at home. However, he continued to report for duty. The employee subsequently tested positive for Covid-19, but still reported for work.
The employer also had video footage which showed that the employee had hugged a fellow employee, and investigations revealed that the employee had been observed walking around the workplace without a mask, after receiving a positive test result. Contact tracing was undertaken and a number of employees were subsequently sent home to self-isolate.
The employee was charged with: - Gross misconduct: for failure to disclose that he undertook a Covid-19 test and was awaiting the results.
- Gross negligence: for failing to self-isolate after receiving a Covid-19 positive test result and furthermore, for failing to follow health and safety protocols while in the workplace.
An internal disciplinary hearing was held and the employee was dismissed.
Rulings
The employee lodged an unfair dismissal dispute with the CCMA, which found the dismissal to be substantively unfair. The CCMA found that although the employee acted in a manner that was “extremely irresponsible”, the employer's disciplinary code and procedure stated that the appropriate sanction for gross negligence was a final written warning.
The CCMA found that the employer did not follow its own disciplinary code and procedure and the employee was reinstated. The employer then took the CCMA arbitration award on review to the Labour Court.
The Labour Court found that disciplinary codes and procedures are not prescriptive and should be interpreted as guidelines. The Labour Court found that the commissioner failed to consider all circumstances when considering appropriate sanction and that the dismissal of the employee was declared to be substantively fair.
The Labour Court did, however, question how, in the midst of this pandemic, the employer could allow its employee to walk around the shop floor without a mask and hug other employees. It further noted that health and safety protocols are meaningless if they were merely “in place and on paper”.
Employers are advised to not lose sight of the various Covid-19 health and safety obligations, in the Level 1 Disaster Management Regulations, together with the directions and guidelines issued by the Department of Employment and Labour and the Department of Health.
It is also important for employers who have not already amended their disciplinary codes and procedures to revise them to deal with instances where an employee fails to adhere to Covid-19 health and safety protocols in the workplace, advises Webber Wentzel.
