Dismissed for going to work with Covid-19

Law firm Webber Wentzel brought a very interesting court case to employers’ attention with a discussion on a recent judgment by the Labour Court – that an employer acted within its rights when it immediately fired an employee for coming to work although he knew he was infected with Covid-19.

The employee, an assistant butchery manager at a meat processing plant, reported for work after one of his colleagues, with whom he was in close contact, contracted Covid-19; he continued to report for work even after he experienced symptoms himself. He also went to work after he tested positive for the virus.

He was dismissed, and subsequently lodged a complaint of unfair dismissal with the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found his dismissal to be substantively unfair.

No written warning

It said that although the employee acted in a manner that was “extremely irresponsible”, the employer’s disciplinary code and procedure stated that the appropriate sanction for gross negligence was a final written warning.

The CCMA found that the employer did not follow its own disciplinary code and procedures, and ruled that the employee must be reinstated.

The employer then took the CCMA arbitration award on review to the Labour Court, which disagreed with the CCMA and ruled that the dismissal was fair.

The Labour Court commented that employers need to consider whether existing Covid-19 health and safety protocols are being taken seriously by employees. Such protocols are meaningless if they are merely “in place and on paper”.

In a review of the case, Webber Wentzel colleagues Mehnaaz Bux, Shane Johnson and Jenna Atkinson highlighted a few of the facts:

• The employer in this case operates a national butchery business, selling meat and cooked food to the public. The employee in question was employed as an assistant butchery manager from May 2018. He was relatively senior.
• The employer had various Covid-19 policies and procedures in place. The employee was a member of the inhouse ‘Coronavirus Site Committee’ and was responsible for putting up posters through the workplace and informing other employees about what to do in the event of exposure.
• The employee travelled to and from work daily with a colleague. On July 1, 2020, the colleague fell ill – and on July 20 tested positive for Covid-19. When his colleague fell ill, the employee conceded that he also started experiencing Covid-19 symptoms (chest pains, headaches and coughs). Despite being informed by management to stay home, he reported for duty on July 10.
• On August 5, the employee took a Covid-19 test, and on August 9 the test came back positive. While awaiting his test results (and even after he received a positive result), the employee still reported for work.
• In its subsequent investigation, the employer also discovered through video footage that on August 10, the employee hugged a fellow employee who had a heart operation five years earlier and had recently experienced post-surgery complications. He was also observed walking around the workplace without a mask. After contact tracing, a number of employees had to be sent home to self-isolate.

Webber Wentzel points out that the Labour Court said it was odd that the CCMA ruled that the dismissal was substantively unfair, while it found that the employee’s conduct was extremely irresponsible and grossly negligent.

The Labour Court also said that disciplinary codes and procedures are not prescriptive, but that they should be interpreted as guidelines, particularly when determining the appropriate sanction.

The Webber Wentzel discussion of the case notes that the Labour Court found that the commissioner failed to consider all circumstances when considering appropriate sanction.

Employer’s actions sufficient?

“Interestingly, the Labour Court questioned whether dismissing the employee, and the employer’s Covid-19 policies and procedures, were sufficient to curb the spread of the pandemic,” according to the discussion paper.

“The Labour Court also questioned how, in the midst of this pandemic, the employer could allow its employee to walk around the shop floor without a mask and hug other employees.”

Webber Wentzel says the judgment is important for both employers and employees, as it highlights a need for employers to determine whether existing health and safety protocols are being followed in the workplace.

“Covid-19 has become a reality for many employers and has become the new norm for businesses,” says Webber Wentzel, listing several laws, regulations and guidelines issued under the current Disaster Management Regulations, as well as those contained in other legislation.

Read: How one South African employer helped its staff get healthier

The court documents make for far more interesting and, if it were not for the gravity of the situation, entertaining reading.

Extraordinary case

The judgment stated that the facts of this case are extraordinary: “They are indicative of the need for more to be done at both the workplace and in our communities, in ensuring that employers, employees, and the general populace are sensitised to the realities of this pandemic, and to further reinforce the obligations of employers and employees in the face of, or event of an exposure to Covid-19.”

The court documents describe the circumstances in detail. The employee, Stuurman Magotsi, used to travel to and from work daily with a colleague, Philani Mchunu.

On July 1, 2020, Mchunu did not feel well and had consulted with a medical practitioner on the same date. Mchunu was then booked off sick from July 1 to 3. He had his sick leave extended on July 4, and was subsequently admitted to a hospital on July 6. He was informed on July 20 that he had tested positive for Covid-19.

According to court documents, Mogotsi also started experiencing chest pains, headaches and coughs at the time Mchunu initially fell ill.

Magotsi consulted a traditional healer – who happened to be his wife – who booked him off for July 6 and 7, and also July 9 and 10.

While Mogotsi was informed by management to stay at home, he nonetheless reported for duty, even after July 20 when he became aware that Mchunu had tested positive for Covid-19, and even after he received his own test results.

Disciplinary

The employer, Eskort Limited, told the court that it initiated a disciplinary process after Mogotsi reported to work while knowing he had been exposed to the coronavirus, and even after he tested positive.

“He personally came to the premises to hand in a copy of his [Covid-19 test] results,” according to the court documents.

Mogotsi raised the defence that he did not know that he needed to self-isolate. He conceded having hugged another colleague at work on August 10, and having walked on the shop floor without a mask.

The court dismissed his defence, saying that he should have been aware of the protocols in his role as a manager.

“Of further significance is that Mogotsi was also a member of the inhouse Coronavirus Site Committee and was responsible for, inter alia, putting up posters throughout the workplace informing employees what and what not to do in the event of exposure or even if they suspected that they may have been exposed to Covid-19 and the symptoms they must look out for,” said Judge Edwin Tlhotlhalemaje in his judgment.

Carefree conduct

“For reasons which are clearly incomprehensible, Mogotsi had through his carefree conduct placed everyone he had been in contact with, whether at the workplace or at his residence, at great risk,” said the judge.

“Even more perplexing is the reason he would go about the workplace maskless and hugging fellow employees, in circumstances where he knew or ought to have known the consequences of his actions, especially after having become aware of Mchunu’s results.

“There is a Covid-19 term which has been coined for this type of behaviour, which out of respect for Mogotsi’s dignity, I will refrain from repeating in this judgment due to its derogatory nature,” said Judge Tlhotlhalemaje.

‘Victimised’

“In the midst of all the monumental harm he had caused, and which was clearly foreseen, Mogotsi could only come up with the now often used defence that he was victimised.

“At no point did he show any form of contrition for his conduct. At most, the evidence presented before the Commissioner pointed to Mogotsi as an employee who was not only grossly negligent and reckless, but also dishonest,” said the judge.

“He had failed to disclose his health condition over a period of time, sought to conceal the date upon which he had received his Covid-19 test results, and completely disregarded all existing health and safety protocols put in place.”

Webber Wentzel concludes in its discussion of the case that it is important for employers to revise their disciplinary codes and procedures to deal with instances where an employee fails to adhere to Covid-19 health and safety protocols in the workplace.