The issue we are examining in this issue is whether the dismissal of an employee, who attended work while awaiting Covid-19 test results, continued to report for duty after the results came back positive and failed to follow health and safety protocols in the workplace, may be deemed substantively fair. 

Readers will recall that I did state that it was my considered view, given the divergent views on this particular issue, that it would ultimately be the responsibility of our courts of law to provide much-needed clarity and certainty on this issue. 

Thankfully, it has not taken long for a Covid-19-related labour law matter to be tabled before one of our courts. The case I am referring to is that of Eskort Limited v Mogotsi and others [2021] 8 BLLR 811. The case was also reported on Moneyweb by Jacques van Wyk, & Andre van Heerden, Director and Senior Associate, respectively, at Werksmans Attorneys. 

Mokgotsi (employee) was employed as an assistant butchery manager at Eskort Limited. Mokgotsi used to travel to and from work with a colleague who had exhibited Covid-19 symptoms and had to be booked off from work for four days. The same colleague was subsequently hospitalised for a number of days, during which Covid-19 tests were conducted. The results came back indicating that Mokgotsi’s colleague had tested positive for Covid-19.

Around the same period that the colleague started feeling unwell, Mokgotsi also started suffering from chest pains, headaches and coughing. He was subsequently booked off from work effective from 6 to 10 July 2020. He duly returned to work on 10 July 2020. On 5 August Mokgotsi underwent a Covid-19 test. He was informed on 9 August that he had tested positive Covid-19. Based on the version presented by the employer, Mokgotsi, instead of undergoing self-quarantine, still reported to work on 7, 9 and 10 of August 2020. It is reported that he personally came to the employer’s premises to hand in his positive test results

Mokgotsi was then charged with gross misconduct and gross negligence. The first charge related to his failure to disclose to his employer that he had undergone a Covid-19 test and was awaiting his results. The second charge, that of gross negligence, centred around the fact that despite his test coming back positive, he continued working and had therefore put the lives of his colleagues at risk. The employer also alleged that Mokgotsi had failed to comply and adhere to the workplace health and safety protocols. It is at this point also worth mentioning that Mokgotsi was a member of the employer’s in-house ‘Coronavirus Site Committee’ and was responsible for, among others, informing other employees of procedures to be followed if they were exposed to Covid-19, as well as symptoms they should be aware of. The employer also presented evidence in the form of video footage, showing Mokgotsi hugging one of his colleagues a day after he had tested positive. The video footage presented also showed Mokgotsi walking around the workplace without a requisite face mask. 

To further compound matters for Mokgotsi, the colleague who was seen hugging had experienced post-surgery complications thereafter. 

Following his dismissal, Mokgotsi referred an unfair dismissal dispute to the CCMA, alleging, among others, that he had not been provided with any clear direction or instruction from the employer and that he was “subjected to victimisation”.

The CCMA confirmed that indeed, Mokgotsi was obliged to inform the employer that he underwent a Covid-19 test, and accordingly, the CCMA confirmed that he was guilty of failing to report his test to his employer. The CCMA further confirmed the guilty verdict in respect of the second charge of gross negligence, as he had reported for duty after he received a positive Covid-19 test result, failed to inform the employer of the same, hugged a fellow employee and walked around the workplace without a mask on.

The CCMA, however, while concurring with the guilty verdict issued in respect of the two charges, felt that when taking into account the employer’s disciplinary code as well as the attendant circumstances, the sanction of dismissal was not an appropriate one substantively. It ordered that, in addition to a final written warning, the employee should be reinstated without back-pay

On review, the Labour Court held that the findings made by the CCMA showed a lack of attention and proper consideration of the evidence which was placed before the Commissioner. The Labour Court held that the sanction issued by the commissioner was at odds with the commissioner’s own conclusion that Mokgotsi’s actions were ‘extremely irresponsible’ particularly when viewed within the context of the prevailing circumstances within the country. The Labour Court felt that, having made this pronouncement, the commissioner was bound to confirm the sanction of dismissal. It is also important to highlight a critical point made by the Labour Court i.e., that the employer’s disciplinary code is merely a guideline in so far as sanctions are concerned and, and that circumstances of each case ought to be viewed and considered on their own merits. I have often stated that most disciplinary codes do indeed contain a clause which state, among other, that the list of transgressions and sanctions stated therein are not exhaustive and merely serve as a guide. 

Ultimately, the Labour Court upheld the dismissal of Mokgotsi, given that:

He was aware that he was in contact with a person who had tested positive for COVID -19 and had himself experienced symptoms;

He had endangered the lives of everyone at the workplace including his colleagues, their families and the community in general;

He was a member of the ‘Coronavirus Site Committee’, he should have easily recognised his Covid-19 symptoms and should have known what to do when in contact with exposed to someone who had tested positive for Covid-19;

His conduct was inconsiderate and nonchalant in that he ignored all health and safety protocols in the workplace;

He walked around the workplace without a mask and hugging colleagues, thereby placing everyone he had been in contact with at great risk;

He did not show any form of contrition on his part. He was also dishonest in that he sought to conceal the date upon which he received his Covid-19 test results.

The Labour Court also concluded that there was, in fact, no evidence that Mokgotsi was victimised. The court, in the final analysis, felt that it was Mokgotsi’s own conduct that had rendered an employer-employee relationship intolerable and unsustainable going forward.

Accordingly, the court set aside the commissioner’s award and held that the employee’s dismissal was substantively fair.

Jacques van Wyk & Andre van Heerden are correct in their opinion that this emphasises the obligation placed on employees to always abide by Covid-19 health and safety protocols in the workplace, as the failure to do so may result in termination of their employment.

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