South Africa: No More Bacon For Mr Mogotsi: COVID-19 And Dismissible Conduct

In a recent Judgment in the matter of Eskort Limited v Stuurman Mogotsi, the Labour Court pronounced on the topical issue of COVID-19 protocols in the workplace, their being disregarded and whether this amounted to dismissable misconduct.

Facts and Background

The facts of the matter were described by the Judge as being "extraordinary" and indeed they were. The employer, Eskort Limited, dismissed an employee, Mr Mogotsi, for gross misconduct and gross negligence. The gross misconduct charge related to the employee's failure to disclose that he had a COVID-19 test and was waiting on result. The gross negligence charge related to the employee's conduct, in failing, after receiving his positive COVID-19 test result, to self-isolate and reporting for work, and, whilst at work, failing to follow the COVID-19 health and safety protocols and procedures in place.

In brief, on 5 August 2020, the employee went for a COVID-19 test. The employee, however, only received his test result back on 9 August 2020. The test result was positive. Meanwhile, the employee had continued to report to work on 7, 9 and 10 August 2020. On 10 August 2020, despite having received the positive result the day before, the employee attended at his employer's premises to hand in a copy of his positive COVID-19 test result. The employer's investigations also revealed that, on 10 August 2020 and while at its premises, the employee hugged a colleague and walked around without his mask on.

The employer had COVID-19 policies and protocols in place and had constantly reminded its employees of these policies and protocols. Ironically, and perhaps the icing-on-top in respect of the employee's conduct, the employee was a member of the employer's in-house "Coronavirus Site Committee" which was responsible for inter alia informing other employees of what, and what not, to do in the event of their exposure and/or suspected exposure to COVID-19.

Arbitration

Unhappy with his dismissal, the employee referred the matter to the CCMA. In the award issued by the CCMA Commissioner, the Commissioner found that the employee was required to inform the employer about the test he had taken, that hugging colleagues and walking around the employer's premises mask-less was "extremely irresponsible" and, that the employee's conduct amounted to gross negligence. The Commissioner, however, concluded that since the employer's own disciplinary code called for a final written warning for conduct such as the employee's, dismissal was not the appropriate sanction. The Commissioner reinstated the employee, without back-pay, and sanctioned him with a final written warning. The Commissioner, in conclusion, found the employee's dismissal to be substantively unfair.

Labour Court

Obviously aggrieved with this outcome, the employer took the Commissioner's award on review to the Labour Court. On review, the Labour Court stated that a disciplinary code and procedure is not prescriptive but is merely a guideline, and irrespective of what it may stipulate, the presiding CCMA commissioner is still obliged to assess the nature of the misconduct in question in determining whether it is so gross that the continued employment relationship is not sustainable. The Labour Court found that since the Commissioner had found that the employee's conduct was extremely irresponsible and amounted to gross negligence, the inevitable conclusion was that the sanction of dismissal was fair.

The Labour Court further found that the employee's conduct was not only irresponsible and reckless but also "inconsiderate and nonchalant in the extreme" and its imminent consequences were dire for all the employees and customers the employee had contact with, as well as their families and communities. In the circumstances, the employee's misconduct was of such a nature that the trust and working relationship could not be sustained.

The Labour Court concluded that considering the evidence and the nature of the employee's conduct and its impact on others, the Commissioner's decision was unreasonable. The Labour Court, therefore, reviewed and set aside the Commissioner's award and substituted it with an order that the employee's dismissal was substantively fair.

Brief analysis

In the Judgment, the Labour Court cautioned employees who blatantly disregard COVID-19 health and safety protocols in the workplace. However, the Labour Court also urged employers to do serious introspection with regards to whether existing health and safety measures and protocols in the workplace are being taken seriously and, particularly, whether they are being properly implemented and applied.

What is apparent from this Judgment, is that the Labour Court will not tolerate conduct which is reckless and endangers others in the workplace. Dismissal would be appropriate in such cases regardless of whether the employer's disciplinary codes and procedures prescribe otherwise. Lastly, what is also relevant and apparent from the Judgment is that Labour Court will take judicial notice of the realities of the COVID-19 pandemic and its effect on the workplace and the wider community.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.