The Labour Court, in a recent case, has confirmed that dismissing an employee who came to work knowing that he had been exposed to the virus, was fair in the circumstances of this case.
The facts in Eskort Limited v Stuurman Mogotsi and Others (JR1644/20)  ZALCJHB 53, were that the employee (Mogotsi) was an assistant manager and a member of the in-house “Coronavirus Site Committee” at work - which, amongst other things, was tasked with informing employees about the risks of COVID-19, what symptoms to look out for and what to do in the event of exposure.
Mogotsi usually travelled to and from work with a colleague. The colleague started feeling unwell, was booked off from work and subsequently tested positive for COVID-19. Mogotsi also started experiencing symptoms associated with COVID-19. Despite him being booked off and his employer advising him to stay at home, he however persisted in coming to work. During the period when he was awaiting the test results, he continued to attend the workplace and interact with other employees. Even after he received his own positive test results, he reported for duty in person to hand in his results and was seen walking around in the workplace without wearing a mask and hugging another employee, who happened to have co-morbidities.
The employer only took a stand on denying him entry to the workplace at this stage, and sent him home. Upon his return a couple of weeks later and subsequent to a disciplinary hearing, he was dismissed for gross misconduct - i.e. failing to disclose to his employer that he had taken a COVID-19 test and that after receiving his results he failed to self-isolate, continued working, and put the lives of his colleagues at risk.
At the CCMA, Mogotsi's defense was that he had informed management of his initial contact with his colleague but that he was not given any directive as to what to do. He also claimed that he had been victimised by the employer. The arbitrator did not accept these defences and determined that Mogotsi had indeed been extremely irresponsible and was therefore guilty of the misconduct. However, with reference to the employer's disciplinary code, the arbitrator decided that a final written warning should have been issued and reinstated the employee.
On review, the Labour Court criticised the arbitrator for failing to appreciate that the employer’s disciplinary code was not prescriptive; and for upholding the suggested sanctions in the disciplinary code rather than considering the merits and determining the appropriate sanction on the facts before him. The court reiterated that, irrespective of what a disciplinary code may say, an arbitrator is obliged to make an assessment of the nature of the misconduct in question, determine if it can be said to be of a gross nature and so, if it impacts negatively on a sustainable employment relationship. In such circumstances, the sanction of dismissal will be appropriate.
In this case, the court found that the employee played the victim card rather than showing remorse; and that he had clearly been grossly negligent, reckless, and dishonest in failing to disclose his health status over a period of time. He had completely disregarded all workplace health and safety protocols - which was compounded by the fact that he had been one of the custodians thereof. The court was clear that the employee's conduct negatively impacted on a sustainable employment relationship, and thus that dismissal was an appropriate sanction.
As regards the employer's role in all of this, the Labour Court was critical of the employer not having taken decisive action sooner in ensuring the health and safety of staff, stating that having fancy policies on paper means nothing if no one, including employers, takes them seriously.
So - employers should be robust in managing employee conduct in the workplace where it impacts the health and safety of employees and customers, including Covid-19 protocols. Employees who have conspiracy views about the impact of the virus can expect little sympathy where this impacts on their workplace conduct. Failing to believe in the impact of the virus is not likely to be a valid defense for refusing to adhere to workplace safety protocols.
Takeaways from this case:
Note: Do not wait for a workplace conduct situation to become untenable before proper disciplinary action is taken. Shying away from conflict and hoping a nice talking-to will solve the problem, only compounds it later if the offending employee is not made to understood the seriousness of the infraction and the future consequences from the start. It is very difficult to explain to an arbitrator or court why dismissal is suddenly the only option when the same misconduct had previously only warranted a counselling or verbal warning. (Read: Managing workplace discipline: Do so timeously)
© Judith Griessel