Durban: A Durban woman, who was fired for refusing to return to the office during level 3 lockdown in June last year, citing a comorbidity, has won her case in the CCMA.
The Commission for Conciliation, Mediation and Arbitration recently ruled in the woman’s favour and found that the employer did not prove that the dismissal was fair and that the woman did not wilfully or deliberately refuse the instruction to return to work.
She was awarded nine months salary.
According to the award, the woman was dismissed for gross insubordination in that she failed to adhere to the company’s Human Resource’s instruction to return to work.
She was also charged with misconduct in that she was absent for a period of about six days during June 2020.
In its arguments, the employer claimed that the woman had produced a doctor’s note that was not stamped by a medical practitioner and that the medical note did not declare she was unfit to resume duties.
The company said that it had put in place various Covid-19 related precautions, including partitions between work stations and various PPE as per government regulations.
Another manager testified that he had put in “exhaustive measures” for staff to return to work and that no Covid-19 positive cases were identified at the time in the office.
However, under cross-examination, he admitted that it was possible partitions were not in place, and the office was an open plan arrangement.
The woman testified that this was, in fact, not the case. When she returned to work, she found a person typing on her computer.
In addition, she told the arbitration hearing that no changes were made to the workplace, according to Covid-19 regulations.
She further stated that she had requested from her managers to work from home, and to attend the office on certain days to perform a certain duty.
She requested to work alone.
She told the arbitration hearing that, instead, her managers spoke above her and told her to sign a comorbidity document and go home.
She admitted that her note did not say she was unfit to attend work, saying that she was receiving treatment for hypertension, which was a comorbidity.
She said she was afraid to continue working as Covid-19 killed people with hypertension, diabetes and obesity.
She told the hearing that she had made many requests with the employer to make it safe for her to return to work, but they failed to do so.
During his findings, CCMA commissioner Mervyn Naidoo said he found it “bizarre” that the employer did not accept the medical certificate but instead wanted one stating that she should be off work.
“The applicant correctly argued that she was fit to work but unable to do so due to her comorbidity.”
Naidoo said during the time the woman was called back to work in June 2020, the country had suffered over 900 deaths and that vaccination against the virus was far-fetched at the time.
Naidoo said President Cyril Ramaphosa had urged employers to take care of their employees during this time and called on all South Africans to act in the interest of the nation and not in their own selfish interests.
In his findings, Naidoo found that the woman’s dismissal was both substantively and procedurally unfair.
IOL