Since the implementation of the lockdown on 21 March 2020 and the further extension of the lockdown on 9 April 2020, some employees still continue to work, either remotely where circumstances permit or as an employee providing an essential service. Consequently, employees who continue to work may commit various forms of misconduct. This article is intended to remind and advise employers what must be considered and remembered, should an employee commit misconduct during the lockdown.
Misconduct in the scope of labour relations is classified as the blameworthiness or breach of a workplace rule or standard. The starting point for any employer is always to consider whether or not to take disciplinary action against an employee. The Code of Good Practice: Dismissal [Schedule 8 amended by s. 57 of Act No. 42 of 1996 and by s. 56 of Act No. 12 of 2002.], (hereafter Schedule 8) dictates that an employer must consider substantive factors of the misconduct, namely:
(a) “whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not—
(i) the rule was a valid or reasonable rule or standard.
(ii) the employee was aware, or could reasonably be expected to have been aware, of the rule or standard.
(iii) the rule or standard has been consistently applied by the employer; and
(iv) if dismissal is an appropriate sanction for the contravention of the rule or standard.”
Should an employee have contravened a workplace rule as per the guidelines above, then the substantive element would have been complied with. Thereafter, the employer will be entitled to elect which procedure to follow.
Schedule 8, section (3) dictates that a formal procedure is not always required every time a rule is broken, or a standard is not met. An Employer may elect to give informal advice or corrective measures as the best and most effective way to deal with minor violations in the workplace. Repeated, less serious misconduct will, however, warrant warnings, which themselves may be graded according to degrees of severity as set out in the employer’s disciplinary code. More serious infringements or repeated misconduct may call for a final warning, or other action short of dismissal. Dismissal should be reserved for cases of serious misconduct or repeated offences.
As most employers are currently faced with a completely new work environment, either on-site or by employees working remotely and in light of stringent regulations being developed by the government in light of the lockdown, employers should take cognisance of the following, before instituting disciplinary action against employees.
- The rule in the workplace:
Is the rule as per the disciplinary code or company policy still valid and lawful, during the lockdown period? For example, employees who are paid only if they have been recorded as being present at work on the biometric / fingerprint access system in the factory. During the lockdown, and due to restrictions of movement, this rule will become impossible for an employee to comply with, should they be working remotely. This begs the question; can an employee be held liable for the breach of the rule? Another example would be for a taxi driver who is required to operate for 12 hours a shift and produce a set monetary target per day based on the number of hours worked and the maximum capacity of people being transported per trip. The new regulations as set out in Government Gazette Vol. 657 No. 43186 now states that only 70% of legal capacity may be in the vehicle at any time during the lockdown. Furthermore, the operating hours of taxi’s have been limited.
Therefore, in this instance, an employee will either have to break the law to reach the daily target and fill the taxi to full capacity to reach target or underperform in terms of daily turnover which may amount to disciplinary action. In both of the examples above, it is evident that the employee cannot be considered to be blameworthy as a result of his actions.
- Tolerance and understanding
Tolerance and understanding would be required by employers during the lockdown period in circumstances which have resulted in a breach of the workplace rule, but by no fault of the employee. Although employees continue to be bound by disciplinary standards established by their employers, maintaining workplace discipline must be considered in light of the current challenging circumstances.
Each case should be considered on its merits, and although employers are entitled to enforce their disciplinary standards, some level of tolerance should be observed by employers.
Individual circumstances of employees should also be considered by employers as the lockdown has dramatically changed the work/home dynamic for many people in all industries. For example, a single mother who is required to report for work as an essential service provider, namely a security guard now has nowhere to take her children to be cared for as all the schools are closed. The cashier as the supermarket who has an underlying serious disease which places him at high risk, should he come into contact with a person who is positive for the coronavirus. In light of the lockdown, an employer should now consider the ‘subjective fears’ of employees and possibly have to adapt their normal working model in order to ensure that work still continues, as far as possible, during the lockdown.
Consistency in the labour sphere is generally understood to mean that the same sanction must be applied in every instance of the same act of misconduct. This is not the case, but instead, an employer is required to implement the same procedure when addressing similar instances or the same act of misconduct. The reason for this is that the law requires that personal circumstances of the employee, including matters such as service record, previous disciplinary record, plus various other mitigating, aggravating factors including the lockdown, may result in a different sanction being imposed based on the case by case basis. In Southern Sun Hotel Interests (Pty) Ltd v CCMA & others  11 BLLR 1128 (LC), the court held that an inconsistency claim at the CCMA will fail where the employer is able to differentiate between employees who commit similar misconduct however present differences in personal circumstances. This inconsistency will be based on the severity of the misconduct or on the basis of other material factors.
As a result, employers should not impose sanctions strictly in terms of their disciplinary codes without considering the circumstances of each case. Failing to maintain historical consistency within their workplaces during this period is excusable.
In light of the above, employers must be reminded that their disciplinary code and company policy is still valid and enforceable during the lockdown period. Employees are not given ‘free reign’ to misconduct themselves during this uncertain time. However, what is of importance is, employers consider the effects of the lockdown, make provisions were applicable and continue to follow procedures, as far as possible, as set out in their company policy.