If you don’t act responsibly, you could lose your job.
It has been more than a year since the initial announcement that South Africa will be going into a state of national disaster due to the COVID-19 pandemic. During this period, the workplace remains one of the most affected environments by this pandemic.
Employers are faced with the question on whether they can discipline employees for not abiding by the rules of the various levels of lockdown. This article will look at a few recent decisions made to provide clarity on this.
Going to work after testing positive for COVID-19 and failing to self-isolate
Eskort Limited v Stuurman Mogotsi and Others (JR1644/20) (2021) ZALCJHB 53
In this matter, the employee continued to go to work after showing COVID-19 symptoms and while waiting on the results of his COVID-19 test. After he received the test results and found out he was positive, the employee went to the workplace to inform the employer in person. While at work, the employee failed to wear a face mask, did not adhere to social distancing protocols and was seen hugging a colleague a day after he found out that he tested positive.
Upon the employee's return to the workplace after he recovered from COVID-19, the employer instituted disciplinary proceedings against him, and subsequently dismissed him on the following grounds:
> gross misconduct for failing to disclose that he underwent a COVID-19 test; and
> gross negligence for failing to self-isolate and to continue working and putting the lives of his colleagues at risk after testing positive for the virus.
The Labour Court held that although the employer's disciplinary code did not warrant dismissal in this instance, it should be remembered that an employer's disciplinary code is merely a guideline with sanctions. All relevant factors and circumstances must be considered before deciding on the appropriate sanction.
The Labour Court confirmed that dismissal was an appropriate sanction due to the seriousness of the matter. The employee's conduct was incomprehensible and highlighted the deadly risks it created, not only for his colleagues, but also his family and the country at large. The Labour Court further held that the employee did not show remorse and the dishonesty in failing to disclose the status of his health to the employer led to a breach of trust and a breakdown in the employer-employee relationship.
This case highlights how important it is to not only follow the health and safety protocols in the workplace, but also to be responsible in disclosing your COVID-19 related health status as soon as possible in order to protect the health of co-workers, their families and the community at large.
DETAWU obo Jacobs v Quality Express (2021) 5 BALR 453 (NBCRFLI)
In a similar matter, the employee was dismissed for failing to notify his employer that he had been tested for COVID-19 and failed to self-isolate.
The employee referred the matter to the National Bargaining Council for the Road Freight Logistics Industry (“NBCRFLI”). He argued that he was unfairly dismissed and that he did not contravene any workplace rules requiring him to self-isolate if he had COVID-19 symptoms. The employer mentioned that the employee previously had to self-isolate and could not hide behind ignorance of the workplace rules.
It was finally held that the dismissal was fair and that the employer communicated precautionary measures to the staff in a manner that could be easily understood, for example, through regular talks with staff and flyers that had been distributed by the employer. The employee cannot hide behind ignorance, especially considering the dangers of COVID-19.
The employee's conduct falls under the banner of serious misconduct that can be classified as the willful endangering of the safety of others and failing to comply with the COVID-19 protocols was so serious that it broke the employer-employee trust relationship.
Not wearing a face mask properly at work
NUMSA obo Manyike / Wenzane Consulting & Construction (2021) 5 BALR 479 (MEIBC)
In a recent matter brought to the Metal and Engineering Industries Bargaining Council (“MEIBC”), the employee removed his face mask on two occasions at the workplace:
> While he was speaking on his cellphone, he decided to pull down his face mask below his chin so that he could sound clearer.
> While speaking to a security guard at work who could not hear him clearly, he pulled down his face mask for the security guard to hear him.
The employer subsequently dismissed the employee and the employee referred the matter to the MEIBC. The employee argued there was never any kind of formal training or communication of the consequences of disobeying the rule of not wearing a face mask while at work.
After considering all the evidence, the MEIBC agreed that although not wearing a face mask during COVID-19 pandemic is risky, the employer could have given alternative sanctions than dismissal to correct the behavior. In this instance, dismissal was too harsh and the employer was ordered to reinstate the employee.
In light of the above, it is clear that the general measures put in place in an attempt to prevent the COVID-19 virus from spreading applies in the workplace as well. Failure to comply with these measures is seen as serious misconduct and may lead to an employee being dismissed.
Did you know…You may be dismissed for failing to self-isolate if you have COVID-19 or think you may have it.