As more of the economy open to allow the operation of a number of businesses under Lockdown Level 3, many employers and employees have one common fear, the fear of contracting the COVID 19 virus.
However, at some stage, we must all face the reality of returning to work during this pandemic.
Employers may find that a number of employees refuse to report for duty for reasons relating to the COVID 19 pandemic. All safety measures need to be implemented by the employer prior to employees returning to the workplace. In terms of Regulations issued by the Minister of Cooperative Governance and Traditional Affairs (hereinafter referred to as the regulations):
- Clause 48 – “An employee may refuse to perform any work if circumstances arise which with reasonable justification appear to that employee or to a health and safety representative to pose an imminent and serious risk of their exposure to COVID 19”.
Therefore, the onus is on the employer to adhere and ensure that the Health and Safety requirements of their workplace are met before they could allow and require their employees to return to the workplace.
In the event that an employee continues to refuse to return to work because s/he is afraid of contracting the virus, in spite of being reassured that all the safety measures are in place, the employer is within their rights to require an employee to return to work and must instruct such employee to return to work if the employee can’t work from home.
The failure of the employee returning to work will entitle the employer to institute and proceed with disciplinary action against the employee for, being absent without permission, and secondly, for not adhering to a lawful instruction. It will, however, only constitute misconduct, if the instruction to return to work, is legal and reasonable. In the current circumstances, the legality and reasonability of the instruction will depend on the merits of each individual case and the reason for refusal by the employee.
The instruction to return to work will be legal and reasonable only if the following requirements have been met:
- The employer/business must be permitted to operate in terms of the current Alert Level Regulations;
- All safety measures must be implemented in the workplace as per the Government Gazette 43257, COVID-19 OHS Safety Measures in the Workplace published on 29 April 2020.
The regulations also make provision for these matters to be referred for mediation and arbitration as per the following clauses:
- Clause 55-
“If there is a dispute as to whether clause 49 has been contravened the employee may refer a dispute to the CCMA or an accredited bargaining council for conciliation and arbitration in accordance with the procedures contained in s.191 of the Labour Relations Act (LRA)”;
- Clause 56-
“If the arbitrator appointed in terms of S191 of the LRA to determine a dispute referred in terms of clause 56 finds that the employer has contravened clause 55, the arbitrator may make any appropriate order contemplated in S193 of the LRA read with S194 (3) or (4) of the LRA”.
Therefore, this dispute will be dealt with in the same manner as many other disputes. In these cases, the onus will rest on the employer to prove that they are compliant with the all necessary health and safety measures.
While employees are entitled to refuse to report for duty when they reasonably believe that the workplace is non-compliant with the Occupational Health & Safety Act, employers must be aware that this right is limited.
Should you receive a referral for a dispute of this nature, immediately contact your nearest CEO office.
Article by: Jamie Moodley
Dispute Resolution Official – Durban