Covid rules confirmed in Labour Court judgment
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It is good news to see that the Covid-19 spread seems, for now, to be reasonably contained. Many hospitals are reporting that they have no new admissions.
This good news tends to lead to many people letting down their guard. We are starting to notice crowds of people, with many not wearing their masks and not practising physical distancing. People have to understand that Covid-19 has not gone away. It will be with us for many months.
Businesses are urged to once again warn their staff that the protocols are very much in place and the breach of the Covid-19 rules and regulations will lead to the spread of the infection and, almost inevitably, disciplinary action.
I am involved in no less than a dozen cases where employers have reported and taken action against recalcitrant employees.
It is time to reiterate the basic rules such as physical distancing, mask-wearing and sanitising. Above this, any staff member exhibiting symptoms must report the symptoms to their health officer or senior management and should immediately take sick leave.
The consequences of a staff member remaining silent, even in the face of the symptoms, could be the loss of one's position and, more seriously, the spread of the infection.
The Labour Court in Johannesburg, in a very interesting judgment handed down at the end of last month, ruled that the dismissal of a staff member for the breach of the regulations was fair.
The case, Eskort Limited versus Mogotsi and Others, was on this point. Judge Edwin Tlhotlhalemaje explored the nature of the disregard for the health and safety protocols and the behaviour of the employees.
The judge stated that Mogotsi’s dismissal was substantively fair, and went on to state: “It is one thing to have all the health and safety protocols in place and on paper. These are, however, meaningless if no one, including employers, takes them seriously.”
The facts of the case showed that employers and employees need to have a careful relook at the health protocols and ensure that they are doing everything in their power to avoid infecting others.
The Judge said: “However, the facts of this case, in my view, clearly compels the need for serious introspection by the applicant and all other employers in light of the above questions posed, in regard to whether existing health and safety measures and protocols in place are being taken seriously by everyone affected.”
The facts of the case identified how the employee, who worked in a butchery business that sold meat to and cooked food for the public, was reckless. The employee was charged with gross misconduct relating to his alleged failure to disclose to the employer that he took a Covid-19 test and was waiting for his results.
After the employee had received his Covid-19 test results, which were positive, he failed to self-isolate and continued working in the business. He put the lives of his colleagues at risk. He reported for duty and failed to follow the health and safety protocols at his workplace, including failing to adhere to physical distancing.
In fact, on one occasion, the employee hugged another employee.
The case was first referred to the Commission for Conciliation, Mediation and Arbitration which ruled that, although the employee was wrong and reckless, the sanction of dismissal was inappropriate.
This was then taken on review to the Labour Court. The employer said the arbitration award did not fall within the range of reasonableness and that the commissioner had failed to properly apply his mind to the evidence placed before him. The argument was that the commissioner’s findings were not those of a reasonable decision maker.
The Labour Court said the employee's carefree conduct placed everyone he had been in contact with, whether at the workplace or his residence, at great risk.
The judge very correctly stated “Even more perplexing is the reason he would go about the workplace mask-less and hugging fellow employees, in the circumstances where he knew or ought to have known the consequences of his actions, especially after having become aware of the positive results.”
The employee said that he was victimised but this did not convince the judge. The employee had failed to disclose his health condition over some time and sought to conceal the date upon which he had received his Covid-19 test results. The employee disregarded all health and safety protocols, not only for his safety but also for the safety of his co-employees and customers. The gross misconduct led to a breach of trust and a breakdown of the employment relationship.
Instances such as the above must be avoided, not only for the sake of being able to retain one's job but also for the health and safety of all the other employees and anyone who might interact with Covid-positive employees.
It is certainly not victimisation to ensure that the spread of the virus is kept contained. Let the above-mentioned judgment be a warning to all employees and employers that the virus is very much with us and will be for a while.
* Michael Bagraim is a labour lawyer. He can be contacted at [email protected]
** The views expressed here are not necessarily those of Independent Media.
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