Pretoria - Going to work while awaiting the results of his Covid-19 test and allegedly spitting at a nurse cost a tow truck driver dearly after he was fired following a disciplinary hearing and the Labour Court sitting in Gqebera confirmed that his dismissal was fair.
It was reasoned by the court that Thembalukhe Diamond knew that his employer, DHL Supply Chain, had a policy in place during 2020 that employees who had Covid-19, or suspected that they had it, should isolate themselves at home.
The company also presented training in this regard – sessions which Diamond had attended.
DHL argued that he thus very well knew that the company was committed to keeping other employees safe by not allowing someone who had Covid-19, or may have it, back at work until they were better.
Diamond initially took his dismissal to arbitration, where a commissioner ruled that it was substantively and procedurally unfair.
DHL took the matter to the Labour Court to have the commissioner’s findings overturned. The Labour Court ruled that a dismissal cannot be unfair if an employee knowingly and deliberately exposed others at his work to the potentially deadly virus.
Diamond fell ill in July 2020. He was booked off by a doctor three days later. But as his health did not improve, after three days he took a Covid-19 test. While still awaiting his test results, he returned to work three days after taking the test.
He could not gain access to the office as his clock card had been blocked. A security guard told him to go to the company’s clinic.
According to DHL, there was an “unpleasant” exchange between Diamond and the nurse at the clinic, when Diamond allegedly spat at her.
This was denied by Diamond, who explained that upon request from the nurse, he completed the Covid-19 questionnaire. He admitted he had body pain and that he had attended a group gathering in the last 14 days. Diamond said he did self-isolate for a period.
The company subsequently took disciplinary action against him and decided to fire him.
The commissioner concluded that Diamond did not breach a rule punishable by dismissal.
Judge Zolashe Lallie commented that when Diamond did not get better, he went for a Covid-19 test. Yet he went to work before he received the results, thus he knew he was endangering the lives of others at work.
The gravity of the employee’s misconduct at the time of its commission should not have been underestimated by the commissioner, the judge said. It could not be unfair to dismiss an employee who knowingly and deliberately exposed others at the workplace to a deadly virus.