Durban - You can be suspended or fired from work if you do not adhere to Covid regulations ‒ even outside of work hours.
This is because of the risk of causing severe illness or death to colleagues, or reputational damage to the company that employs you.
This week, the question over whether employers could dismiss employees for Covid-19 related conduct ‒ or misconduct ‒ away from the workplace and out of working hours, was raised by Strata-G Labour Solutions senior legal adviser Justin Hattingh, who said employees who flouted Covid-19 regulations could face being disciplined or even dismissed.
While employers are obligated to provide a safe and healthy environment for their staff under the Occupational Health and Safety Act, staff also have to comply with such regulations in the workplace. But "where employers can prove that someone was reckless after hours and exposed other employees at work, there could be a basis to act against them as that kind of conduct materially impacts on the employment relationship and the duties and responsibilities of both parties," said Hattingh.
He clarified that “reckless” behaviour would be of such a serious nature that it could cause severe illness or death.
Hattingh said while staff had a right not to share their medical condition with their employer and may use their right to privacy to try to conceal having Covid-19, "should it come to light that an employee knowingly placed other staff members at risk of contracting the virus, the deception can amount to a criminal offence.
"The possibility of disciplining staff for providing false or misleading information also exists. At the end of the day employees need to be reasonable and need to understand that their conduct not only affects themselves, but can affect everyone else," said Hattingh.
He said his company had already handled a number of cases, although none had yet gone to court. He emphasised it was important for companies to have a proper policy in place with occupational and safety-related offences detailed in the codes of conduct. It is also crucial that staff be made aware of such possible offences.
"We've had quite a few cases and those companies which had not implemented such a policy were limited to giving a general warning," said Hattingh.
While "reckless behaviour" is normally spotted on social media posts, Hattingh did not believe companies would troll through social media checking on staff behaviour out of work, although tip-offs could also come through different forms of communication. He said a proper investigation with witnesses would have to be done.
Law firm, Cliffe, Dekker Hofmeyr also released an alert on the issue of behaviour outside of the workplace which could lead to illness or possible death for other staff members because of Covid-19.
"The question of whether employers have the right to discipline employees for reckless (or even unlawful) conduct such as failing to wear a face mask in a public setting or on public transport and consequently exposing themselves to the highly infectious coronavirus disease 'outside of the workplace' arises," said the statement.
It added that an employee's conduct could result in a potential outbreak in the workplace while the employer had a statutory duty to provide a safe and healthy environment for staff.
"This could impact the productivity of employees, unplanned payment of sick leave or even the death of vulnerable employees and the economic risk of having to shut down the place of business,“ said Cliffe, Dekker Hofmeyr.
Similar to cases where racist comments by employees had negatively impacted on a business, reckless behaviour out of the workplace could also cause reputational damage to a company.
"This question is also pertinent to the high likelihood of the employer suffering reputational damage if the employee's conduct can be traced back to the employer, or the respective employee potentially contracting the virus and causing the spread within the workplace," said the statement.
Cliffe, Dekker Hofmeyr warned that disciplining employees for misconduct outside of the workplace “was not as straightforward as it may seem”, with the general rule being that actions performed outside of the workplace and working hours were beyond the scope of the employer's disciplinary authority.
"This is based on the premise that the private lives of employees are usually of no concern to their employers and employers have no right to dictate the conduct of employees outside of their working hours. However, disciplinary action for an employee's extramural conduct may be justified in certain circumstances, namely when a connection can be made between the extramural misconduct of the employee and the negative impact this has on the employer's business or the employer relationship," said Cliffe, Dekker Hofmeyr.
UKZN's Centre for Socio-Legal Studies Professor David Mcquoid-Mason, who advises nine private hospitals and a number of public hospital ethics committees, individual doctors, academic medical colleagues, and other healthcare personnel on the legal and ethical implications of different aspects of the Covid-19 pandemic, said companies should ensure they had a policy in place and employees must be made aware of such.
Adding that there were certain limitations on the right to privacy, he said: "In terms of the Covid regulations, if you do expose someone, you can be criminally prosecuted. This must be pointed out to all employees. As soon as a company gets its policy in place, the better," said McQuoid-Mason. He added that employers should also advise employees that such a policy was in their interests as eventual intention can be proved, which means a person can objectively foresee that he/she could injure/harm someone.
Employment lawyer Venolan Naidoo from international law firm Fasken based in Johannesburg, said employers would have to "tread with caution to avoid the risk of an unfair labour practice or unfair dismissal dispute (should dismissal result) with regard to disciplinary action and Covid-related conduct.
"It would ultimately depend on the circumstances surrounding the breach of Covid-19 regulations and one should approach this on a ’case-by-case’ basis. Although it may be outside of work, the circumstances could pertain to seriously endangering the health or lives of others (especially if an employee knew he/she had tested positive for Covid-19),“ said Naidoo.
“In this regard, if a particular employee, known to have posed such serious risk, can reasonably be associated to a particular employer, there could be a basis for reputational harm caused against the interests of the employer. That said, it should be conduct of a serious nature and where an employee knew, or ought to have reasonably known, that by acting as such this could cause reputational harm," said Naidoo, who also warned that employers needed to have a policy in place.
On the question of whether out of office conduct and breaking Covid regulations could lead to disciplinary action in the public sector, Department of Labour spokesperson, Musa Zondi said, "We had a similar query this week. There is nothing in terms of the Occupational Health and Safety Act, and Act 85 as amended that suggests this is the case."
The Independent on Saturday