Workplace safety is paramount during pandemic

Dismissal is an appropriate sanction for employees who fail to self-isolate when they have symptoms of Covid-19, or who continue to come to the workplace after having tested positive for the virus.

Written by Dr Hilda Grobler, Director of Aequitate Dispute Resolution Services (Pty) Ltd, for LexisNexis South Africa.

The Labour Court not only confirmed that dismissal was an appropriate sanction when a Covid-19 health and safety policy was breached, but also questioned whether it was enough for a workplace to have “these fancy COVID-19 policies, procedures and protocols in place” if these were not strictly enforced.

The facts in the matter of Eskort Limited v Stuurman Mogotsi and Others (handed down on 28 March 2021) showed that the employee, who was a manager and member of the ‘Coronavirus Site Committee’, had a reckless disregard for a policy which required employees to wear masks at all times, maintain social distancing, to report known symptoms associated with Covid-19, and to self- isolate or quarantine when necessary.

It was common cause that the employer “had COVID-19 policies, procedures, rules and protocols in place, and all employees had been constantly reminded of these through memorandum and other various means of communications posted at points of entry and also through emails.”

Although the employee knew that a fellow employee with whom he travelled regularly in a private vehicle had tested positive, and despite experiencing known symptoms as a consequence, he failed to self-isolate. He ignored being told on no less than two occasions to stay home, and continued to report for duty “as if everything was normal”.

When he finally tested positive, he did not immediately disclose his test results and continued to come to work for about another two days. During this period, he hugged a fellow employee who had a heart operation about 5 years ago and had recently “experienced post-surgery complications”. He also conceded that he had walked around on the shop floor without a mask.

The court rejected his version that he was not given any clear directive as to what to do, that he “had no noticeable symptoms”, and finally that he was being victimised.

The court concluded that he had “recklessly endangered not only the lives of his colleagues, and customers at the workplace, but also those of his close family members and other people he may have been in contact with”, and that he did so “in circumstances where he knew or ought to have known the consequences of his actions”.

Despite the “monumental harm he had caused” given that the employer had to send everyone with whom he had been in contact home to self-isolate, he failed to show any remorse. He further refused to acknowledge that he had caused anxiety among and placed strain on his co-employees and their immediate families when he disregarded the health and safety protocols at the workplace.

The court concluded that his conduct was of such a “gross nature” that it destroyed the “trust and working relationship”.

In the circumstances the court set aside the CCMA Commissioner’s award directing the employer to reinstate the employee by finding that the employee’s dismissal was substantively fair.

This judgment emphasises that employers must have a Covid-19 health and safety policy which must be strictly enforced as well as the fact that a breach thereof justifies dismissal.

Dr Hilda Grobler

Director of Aequitate Dispute Resolution Services (Pty) Ltd