As the country moves from different levels of lockdown trying to limit the spread of COVID19, employers and employees find themselves caught in the balance of what is ‘reasonable’ when it comes to work.

Can an employee refuse to work during lockdown with the employer providing the necessary PPE, travel documentation and permits allowing it to operate as an essential service?

In the recent CCMA case of Botha v TVR Distribution, a sales executive Mr. Botha, was dismissed for gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown level 5.

Botha was informed that the company had applied for a certificate from the Companies and Intellectual Property Commission (CIPC) to allow it to operate as an essential service during the lockdown and that he was required to work and present himself at the office to do so. His defence was that he hadn’t been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he would not break the law.

The Commissioner found that Botha was not truthful, the company had taken safety precautions, the necessary personal protective equipment and the CIPC certificate was provided and was sufficient to allow him to travel. This proved that Botha simply had no intention to attend work.

The commissioner considered the evidence and stated with reference to various authors and the Labour Relations Act that:

• Employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority.
• Item 3(4) of Schedule 8 Code of Good Practice: Dismissal states that “generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable”.
• Item 3(5) of Schedule 8 states that “when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”. (Botha reportedly had a history of insubordination and insolence which contributed to the decision of dismissal.)

The commissioner found that Botha had failed to obey a lawful and reasonable instruction, was insolent and insubordinate in doing so, and that his dismissal was therefore substantively fair. It is clear then that COVID-19 regulations do not automatically give employees the right to choose which instructions to obey and ignore. Employers should, however, ensure that they follow a fair procedure in a disciplinary hearing as a procedural irregularity could result in the employer being ordered to pay compensation, even in instances where dismissal is warranted.