The Coronavirus has come, but it is far from gone. We find ourselves coming to terms with a new normal which has affected almost every facet of our lives. This is particularly true in the employment sector. The employer-employee dynamic has had to evolve to survive the times, and honesty between parties is paramount. So, what would happen in an instance where an employee fails to advise their employer about their COVID-19 status or exposure?
Recently, the Labour Court in Escort Limited v Stuurman Mogotsi and Others adjudicated upon this issue. Briefly, the employee travelled to and from his place of employment with a colleague who had tested positive for COVID-19 and had to be hospitalised due to the severity of the virus on his body. At the time that his colleague had felt sick, the employee started to display symptoms of COVID-19. After consultation with a traditional healer, the employee was booked off sick for a few days but returned to work after that – against his employer’s instructions. More than two weeks had passed before the employee took a COVID-19 test, where he tested positive for the virus. Importantly, the day after receiving the results, the employee returned to work, with investigations showing that he had hugged a colleague and had walked around his place of employment without a mask after knowing that he had tested positive for COVID-19.
The employer charged the employee with gross misconduct and negligence for failure to follow the company’s COVID-19 health and safety-related protocols. The employee was subsequently dismissed, and the employee referred a matter to the CCMA, claiming that he was subjected to victimisation. He was unaware that he was required to isolate after coming into contact with somebody who had tested positive for COVID-19 or after testing positive for COVID-19.
The Labour Court rejected the Applicant’s argument. It noted that the employee had recklessly endangered the lives of his colleagues, customers and close family members by failing/refusing to self-isolate. The court stated further that the employee had ignored advice, policy, rules and procedures regarding COVID-19 in the workplace. The consequences of the employee’s actions were severe for his employer, other employees he had come into contact with, his own family and the community. The Labour Court ruled that the employee’s conduct was such that it was impossible for a working relationship to be maintained between the employer and employee and accordingly upheld the decision of the company to dismiss the employee.
Employers need to keep in mind that they are responsible for providing a safe environment for their employees. It is equally as important for employees to bear in mind that they bear the responsibility to ensure that they are compliant with workplace rules and regulations regarding health and safety. This judgment is a marker to employees that where they openly disregard the workplace rules and endanger people around them, the employer will have recourse to take appropriate disciplinary action.
Article by: Avishkar Singh
Dispute Resolution Official – Durban