WHAT MAY HAPPEN TO EMPLOYEES WHO CONTINUE TO WORK DESPITE

TESTING POSITIVE FOR COVID-19?

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We have seen the massive impact the pandemic has had on business all over the country, forcing businesses to adopt different approaches and strategies in order to cope with the ongoing restrictions brought by government and the deliverance of safety to their employees, making the workplace environment more complex than ever before.

In Eskort Ltd v Mogotsi [2021] JOL 50246 (LC), a recent case where a disgruntled employee (“M”) approached the Commission for Conciliation, Mediation and Arbitration (CCMA) on the grounds of being dismissed for failing to self-isolate despite showing symptoms and testing positive for Covid-19. The Commissioner found that the employer did not have any instructions, policy or rule that expressly compelled its employees to inform it when they had undertaken Covid-19 tests, however there was a rule that an employee who suspects that he/she was infected with the virus had to immediately inform the employer of such. M was in close contact with another fellow employee who tested positive for the virus and at the time this fellow employee felt ill, M was showing symptoms of the virus as well. Shortly after, he took a Covid-19 test and was informed of the positive result. Despite this, he personally went to work and handed a copy of the results and reported for duty the very next day.

 

Accordingly, the commissioner found M guilty of failing to inform or report to the employer that he was taking a test for Covid-19. M was also found grossly negligent in the conduct he portrayed by not wearing a mask and hugging fellow employees whilst knowing he was positive for the virus. Despite the Commissioners findings, the commissioner was of the view that M’s dismissal was not appropriate and substantially unfair. The Commissioner found that the employer should have justified the sanction of dismissal as was required in the employer’s disciplinary code and procedure. Considering this, the Commissioner issued a final written warning on M’s record and reinstated him.

The employer applied for the Commissioners award to be reviewed in the Labour Court, which was thereafter granted. The employer contended that the Labour Relations Act, rules, polices and/or code of conduct that the Commissioner based his award on was to be used as a guideline, insofar as issues of sanctions are concerned.

 

The court found that M’s conduct was not only irresponsible and reckless but was also inconsiderate and nonchalant in the extreme. He had ignored all health and safety warnings, advice, protocols, policies, and procedures put in place at the workplace related to Covid-19, which shockingly he was aware of given his status as not only a manager but also part of the Coronavirus Site Committee. Through M’s care-free conduct, he placed all persons he was in contact with in danger, including fellow co-workers and family members at their and his residence and/or communities.

In light of all the evidence led by the employer, the Commissioners award was set aside by the court and substituted with an order that the dismissal of M was substantially fair.

 

This case sets a precedent of employee’s responsibilities towards their fellow co-workers, employers and the public as a whole by imposing a consequence on employees who fail to adhere to safety and health protocols during the pandemic. In light of the above, we urge employees to be safe and be cognisant of the conduct you portray in the work environment, when showing symptoms of the virus and/or testing positive for same.

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Should you wish to know more of your rights and responsibilities during the pandemic, please do not hesitate to contact our offices via email or telephonically on 011 646 8411 

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-Philip Da Silva