COVID-19 protocols impose obligations on employees

The developing law has been and is still being outpaced by the coronavirus pandemic, but it is quite apparent that while the employer bears the obligation to ensure that the workplace is safe, the employee also has corresponding obligations.

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

Deep into its second devastating year, daily reports from different parts of the world show that it is well-nigh impossible to control the rapid pace at which the Delta variant, one of four identified “variants of concern” of COVID-19, is spreading.

It is a fact that the developing law has been and is still being outpaced by the coronavirus.

The revised Directions in terms of the Disaster in Management Act Regulations require employers to balance employee rights and interests against those of the workplace.

While employers are required to provide a safe workplace, employees are obliged to:

• Obey the health and safety rules and procedures laid down by their employer.
• Take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions.

Employees must wear masks

Experts advise that even after one has been vaccinated, one should continue to wear a maskwhile practisingsocial distancing, avoiding crowded situations, sanitising and giving preference to well ventilated spots - as the vaccinated people in Israel have discovered.

Masks only reduce viral transmission if worn correctly:  It is a simple barrier to prevent your spray of respiratory droplets from reaching others - and from theirs reaching your face. Unless it covers your chin, mouth and nose, the virus can get in and it can get out.

Operational requirements will determine whether masks suffice, or vaccinations are mandatory requirements to enter the workplace.

It is important to remember that the wearing of a mask is mandated by law and it is a criminal offence not to do so.

There are conflicting arbitration awards as to whether the dismissal of employees who failed to wear their masks properly at the workplace was justified or not. Like in all other instances it depended on the facts whether such misconduct attracted a warning or a dismissal.

The applicant in the matter of Numsa obo Manyike/Wenzane Consulting & Construction wore a mask but dropped it below his mouth while speaking on his cellphone.

He was dismissed as a consequence.

In the absence of the respondent, the MEIBC arbitrator proceeded by default, and reinstated the applicant who was on a final written warning at the time for having committed the same misconduct a few days earlier.

Employees must adhere to COVID-19 protocols

A number of employees who failed to adhere to the COVID-19 protocols, have faced disciplinary hearings. In terms of the arbitration awards that have been rendered thus far, it would appear that dismissal was deemed to have been the appropriate sanction.

Following his disciplinary hearing, the employee referred an alleged unfair dismissal dispute to the Road Freight Bargaining Council (Detawu abo Jacobs and Quality Express).

It was common cause that the applicant went for a COVID-19 test after experiencing some symptoms. While he was waiting for his test results, he went to work in direct breach of the COVID-19 protocols.

Whilst at the workplace, he had direct contact with several employees and thus potentially exposed them to the virus. He claimed that his dismissal was unfair because he had not received training on COVID-19 measures; that there wasn’t a COVID-19 policy at the workplace; that he had no knowledge of any rules relating to COVID-19 protocols; and therefore claimed that he was not in breach of any rule.

The Commissioner did not accept these reasons and found that the dismissal was for a fair reason.

Employee cannot claim constructive dismissal or discrimination

If the employee is dismissed because of a Covid-19 breach, he cannot claim constructive dismissal, discrimination or a breach of his constitutional rights.

If the employer had followed the required steps in terms of the Directions issued in terms of the Occupational Health and Safety Measures in Certain Workplaces, and had objectively evaluated the employee’s rights in terms of section 12(2)(b) of the Bill of Rights, or had given effect to the principle of reasonable accommodation (where applicable), it stands to reason that there would neither have been a breach of his constitutional rights nor would it amount to discrimination.

There is simply no basis upon which an employee can argue that the employer had made his employment intolerable when he was required to give effect to the law, alternatively to COVID-19 protocols.

It is therefore quite apparent that while the employer bears the obligation to ensure that the workplace is safe, the employee also has corresponding obligations. Balancing the interests of both parties means that both must give effect to all the COVID-19 protocols, alternatively, the developing law.

Dr Hilda Grobler
Director of Aequitate Dispute Resolution Services (Pty) Ltd