Both employees and employers have an obligation to adhere to health and safety regulations established in terms of legislation and as developed in terms of in-house policies and procedures. It is vital for employers to have clear policies and rules in place, and to ensure that such policies and rules are enforced consistently.
The below case addresses the seriousness of non-compliance by employees when it comes to COVID-19 protocols in the workplace, and the responsibilities an employer has in these circumstances.
In the matter of Eskort Limited v Stuurman Mogotsi and Others (JR1644/20) the Labour Court upheld a dismissal of an employee who went to work after testing positive for COVID-19. The employee who was employed as an Assistant Butcher and also a member of the in-house “Coronavirus Site Committee” was charged with gross misconduct and gross negligence, in that he had failed to disclose that he underwent a COVID-19 test and further failed to self-isolate after receiving positive results, thus putting the lives of his colleagues at risk and contravening the workplace rules.
Despite being tested positive the employee reported for work. He was observed on CCTV footage at the workplace hugging a fellow employee who has a heart condition and walking around the workplace without a mask. He was charged and eventually dismissed. Following his dismissal, the employee referred the matter to the CCMA. The Commissioner agreed that the employee’s actions were indeed “extremely irresponsible”, however, held that the company had deviated from its own policies and disciplinary code in dismissing him and ordered that the employee be reinstated with a final written warning.
Unhappy with the CCMA’s decision the employer took the matter on review to the Labour Court. The Labour Court held that the employee’s actions were not only extreme and irresponsible but was “inconsiderate and nonchalant in the extreme”. He ignored all health and safety warnings, protocols, policies and procedures of which he was fully aware of given his status as a senior member of staff and as a member of the “Coronavirus Site Committee”.
The dismissal was confirmed as fair.
Conclusion:
Even though the Court upheld the dismissal and held that the Commissioner’s findings and conclusions were entirely disconnected with the evidence that was placed before him, the Court further questioned the company’s none adherence to its own “fancy COVID19 policies”, when it allowed the employee to walk without a mask on the shop floor and hugging a co-worker. The learned Judge stated: “…does a basic principle such as social distancing mean anything to anyone in the workplace? It is one thing to have all the health and safety protocols in place and on paper. These are however meaningless if no one, including employer, take them seriously…”.
It is important to note that the employer has a duty in terms of the OHSA (Occupational Health and Safety Act) to ensure a safe working environment and to ensure that any policies it has implemented, including COVID 19 protocols, are adhered to and applied consistently. Allowing an employee to walk in the workplace without a mask and engaging in close contact with staff is in contravention of the mentioned legislation and the employer’s duty to ensure a safe working environment. Employers may face serious consequences in terms of the Disaster Management Act as well as the Occupational Health and Safety Act in instances of non-compliance.