By Anja van den Berg
Is it fair to dismiss an employee who came to work, knowing he was exposed to Covid-19?
Is it reasonable to terminate an employee who clocked in at the workspace knowing that he or she had been exposed to Covid-19?
“Without a doubt”, said the Labour Court in a recent judgment.
The employer, in this case, operates a national butchery business, selling meat and cooked food to the public. The employee in question was employed as an assistant butchery manager from May 2018.
He was also a member of the internal Coronavirus Site Committee. His responsibilities included putting up posters in the workspace and informing other employees on steps to take in the event of exposure.
The employer proved to have had various Covid-19 policies and procedures in place.
The employee in question travelled to the workspace with a colleague. They carpooled together. His colleague fell ill, with the employee in question also experiencing symptoms associated with Covid-19.
The employee in question was put on sick leave and the employer supported the medical practitioner’s advice and instructed the employee to stay at home.
Ignoring the directives, the employee, however, persisted in coming to work. He continued to pitch up even after it became known to him that his ride-sharing colleague had tested positive for Covid-19.
While waiting for his test results, he continued to attend the workplace and interact with other employees. In addition, after he tested positive for the coronavirus he reported for duty in person to hand in his results.
Security camera footage confirmed that the employee failed to wear a mask and even hugged a colleague with comorbidities. After contact tracing, several employees had to be sent home to self-isolate.
The employer dismissed the employee for (i) failing to notify it that he was showing Covid-19 symptoms, and (ii) neglecting to take appropriate steps after receiving his test results, including declining to self-isolate, continuing to attend work and not practising social distancing at work.
The employee lodged an unfair dismissal dispute with the CCMA. The CCMA found that the employer did not follow its own disciplinary code and procedure (a written warning), and the employee was reinstated. The employer then took the CCMA arbitration award on review to the Labour Court.
The Labour Court found that the commissioner failed to consider all circumstances when considering appropriate sanction. As a result, the Labour Court declared the dismissal of the employee to be substantively fair.
Johan Botes, a Johannesburg attorney, says that employers should take their cue from this judgment. He advises companies to be robust in their Covid-19 procedures and note the various Covid-19 health and safety obligations contained in the Level 1 Disaster Management Regulations. This should be read together with the directions and guidelines issued by the Department of Employment and Labour and the Department of Health.
Botes warns employees who fail to adhere to Covid-19 protocols to expect little sympathy from employers, the employment tribunal, or the court. Failing to believe in the impact of the virus is not likely to be a valid defence against dismissal for refusing to adhere to workplace protocols.