A recent judgment by the Labour Court implores employers to consider whether existing Covid-19 health and safety protocols are being taken seriously by employees, write Mehnaaz Bux, Shane Johnson and Jenna Atkinson from Webber Wentzel. Such protocols are meaningless if they are merely “in place and on paper”.
In this judgment*, the Labour Court upheld the dismissal of an employee who reported for duty / work despite knowing that he had tested positive for Covid-19. Webber Wentzel summarises the facts of this matter and key takeaways from the judgment below.
Facts
The employer in this case operates a national butchery business by selling meat and cooked food to the public. The employee in question was employed as an assistant butchery manager from May 2018. He was relatively senior.
The employer had various Covid-19 policies and procedures in place. The employee was a member of the in-house ‘Coronavirus Site Committee’ and was responsible for putting up posters through the workplace and informing other employees on what to do in the event of exposure.
The employee travelled to and from work daily with a colleague. On 1 July 2020, his colleague fell ill and tested positive for Covid-19 on 20 July 2020. When his colleague fell ill, the employee conceded that he also started experiencing Covid-19 symptoms (chest pains, headaches and coughs). Despite being informed by management to stay home, he reported for duty on 10 July 2020.
On 5 August 2020, the employee took a Covid-19 test, which came back positive on 9 August 2020. Although he was awaiting his test results (and even after he received a positive result), the employee nevertheless reported to work on 7, 9 and 10 August 2020.
In its subsequent investigation, the employer also discovered (through video footage) that on 10 August 2020, the employee hugged a fellow employee who had a heart operation five years earlier and had recently experienced post-surgery complications. He was also observed walking around the workplace without a mask. After contact tracing, a number of employees had to be sent home to self-isolate.
The employer then charged the employee with:
- Gross misconduct in that he failed to disclose that he undertook a Covid-19 test on 5 August 2020 and was awaiting his results
- Gross negligence in that he failed to isolate even after receiving his positive Covid-19 test result, and that he failed to follow workplace health and safety protocols when he attended his workplace
After holding an internal disciplinary hearing, the employee was dismissed.
The employee lodged an unfair dismissal dispute at the CCMA, which found his dismissal to be substantively unfair. The CCMA found that although the employee acted in a manner that was “extremely irresponsible“, the employer’s disciplinary code and procedure stated that the appropriate sanction for gross negligence was a final written warning. The CCMA found that the employer did not follow its own disciplinary code and procedure and the employee was reinstated. The employer then took the CCMA arbitration award on review to the Labour Court.
Labour Court judgment
The Labour Court said it was odd that the CCMA ruled the dismissal was substantively unfair, while it found that the employee’s conduct was extremely irresponsible and grossly negligent.
The Labour Court also said that disciplinary codes and procedures are not prescriptive. They should be interpreted as guidelines, particularly when determining the appropriate sanction. When considering the appropriate sanction, it is important for the commissioner to make an assessment based on the nature of the misconduct. If the nature of the misconduct renders the continued employment relationship no longer sustainable, dismissal is an appropriate sanction.
The Labour Court found that the commissioner failed to consider all circumstances when considering appropriate sanction. The dismissal of the employee was declared to be substantively fair.
Interestingly, the Labour Court questioned whether dismissing the employee and the employer’s “fancy” Covid-19 policies and procedures were sufficient to curb the spread of the pandemic. The Labour Court also questioned how, in the midst of this pandemic, the employer could allow its employee to walk around the shop floor without a mask and hug other employees.
Ultimately, the Labour Court implored employers to consider whether existing health and safety protocols were being taken seriously by its employees, since they are meaningless if they were merely “in place and on paper“.
This judgment is important for both employers and employees, as it highlights a need for employers to introspect and determine whether existing health and safety protocols are being followed in the workplace. While Covid-19 has become a reality for many employers, and has, to an extent, become the new norm for businesses, it is important that employers do not lose sight of the various Covid-19 health and safety obligations which are contained in the Level 1 Disaster Management Regulations, read together with the directions and guidelines issued by the Department of Employment and Labour and the Department of Health. Under the Level 1 Disaster Management Regulations, employers must ensure that health protocols and social distancing measures are followed in the workplace.
These protocols are detailed in the consolidated directions on occupational health and safety measures that were issued by the Department of Employment and Labour on 28 September 2020. We understand that revised consolidated directions are in the pipeline and we will keep clients updated once these directions are published.
There are also various guidelines issued by the Department of Health which offer advice to employers on how to manage certain issues in the workplace – e.g. the return to work for vulnerable employees, submission of Covid-19 data to the Department of Health, guidelines on symptom monitoring and management of Covid-19-positive employees and cleaning and decontaminating workplaces.
It is also important for employers who have not already amended their disciplinary codes and procedures to revise them to deal with instances where an employee fails to adhere to Covid-19 health and safety protocols in the workplace.