19 April 2021 by and Employment Law Alert

Time for introspection – are we taking COVID-19 protocols seriously?

The COVID-19 pandemic is not a joke. At the time of writing, in South Africa alone there were almost 1,6 million positive cases identified and close to 54,000 deaths, in just over a year. Internationally, there have been more than three million deaths. Despite the health and economic devastation caused by the pandemic, some people just don’t seem to care. The Labour Court had to consider one such case in the recent judgment of Eskort Limited v Stuurman Mogotsi.

Mr Mogotsi was an assistant butchery manager. He was also a member of the in-house “Coronavirus Site Committee” at work. The committee is instrumental in, amongst other things, informing employees about the risks of COVID-19, what symptoms to look out for and what to do in the event of exposure.

Mogotsi used to travel to and from work with a colleague. On 1 July 2020, the colleague felt unwell and consulted with his doctor. He was booked off from work until 04 July 2020, and subsequently admitted to hospital on 6 July 2020. On 20 July 2020, he was informed that he had tested positive for COVID-19.

At about the same time, Mr Mogotsi started experiencing chest pains, headaches and coughs. He consulted a traditional healer, who booked him off sick on 6 and 7 July 2020, and again from 9 to 10 July 2020. The traditional healer happened to be his wife.

Despite his employer advising him to stay at home Mr Mogotsi reported to work after 10 July 2020. He continued to come to work even after he became aware of the fact that his colleague had tested positive on 20 July 2020. On 5 August 2020, Mr Mogotsi decided to take a COVID-19 test. He did not inform his employer and he continued going to work. He was informed on 9 August that he had tested positive. Notwithstanding the results, Mr Mogotsi still went to work on 9 and 10 August 2020.

While at work, he disregarded the employer’s social distancing protocols, and often did not wear a mask. To make matters worse, on the day after he had received his result, Mr Mogotsi was seen hugging a fellow employee who happened to have a heart operation five years earlier and had recently experienced post-surgery complications. On 10 August 2020, when he personally handed the results of his COVID-19 test to his employer, he was sent home to self-isolate.

Quite correctly, the employer instituted disciplinary proceedings against Mr Mogotsi when he returned to work. He was dismissed for gross misconduct (for failing to disclose to his employer that he had taken a COVID-19 test) and for gross negligence (in that after receiving his results he failed to self-isolate, continued working, and put the lives of his colleagues at risk).

Mr Mogotsi referred a dispute to the CCMA. His defense was that in July he had informed management of his initial contact with his colleague but that he was not given any directive as to what to do. Instead, he alleged that he was victimised and questioned about his sick notes. The CCMA Commissioner made short shrift of the victimisation argument and found Mr Mogotsi guilty of the allegations against him. However, the Commissioner found that the sanction of dismissal was inappropriate as the employer’s disciplinary code suggested only a final written warning for this type of dismissal. He reinstated Mr Mogotsi, albeit without backpay and with a final written warning. The Commissioner, in making his decision, had regard to the provisions of the Labour Relations Act (LRA), the CCMA Guidelines and the Code of Good Practice.

The employer, with good reason, instituted review proceedings in the Labour Court. Needless to say, the court was suitably unimpressed with Mr Mogotsi’s conduct. The court found that the Commissioner had concluded that Mr Mogotsi’s conduct was “extremely irresponsible in the context of the pandemic”. That should have been the end of the matter. The court was critical of Commissioners who paid lip-service to the provisions of the LRA and the Code of Good Practice. It found that reference to these provisions without actually applying them to the facts of a case was a meaningless exercise.

In this matter it had clearly escaped the Commissioner that the employer’s disciplinary code was not prescriptive and was merely a guideline insofar as sanctions were concerned. The court reiterated that, ultimately, irrespective of what a disciplinary code may say, a Commissioner is obliged to make an assessment of the nature of the misconduct in question, determine if whether, combined with other factors and the evidence led, the misconduct in question can be said to be of a gross nature. Once that assessment is made, and the invariable conclusion to be reached is that the misconduct in question is of such gross nature as to negatively impact on a sustainable employment relationship, then the sanction of dismissal will be appropriate.

The court found that Mr Mogotsi’s carefree attitude was incomprehensible. The consequences of his conduct were not only dire for his employer but equally so for his colleagues, their families and the community. The court was shocked that Mr Mogotsi, despite clearly foreseeing the monumental harm he had caused, rather than show remorse he played the “often used” victim card. The court found that Mr Mogotsi was not only grossly negligent and reckless, but he was also dishonest in failing to disclose his health status over a period of time and completely disregarded all workplace health and safety protocols.

The court was also concerned that more needed to be done in the workplace and in the communities to ensure that employers, employees and the general populace are sensitised to the realities of the pandemic and to reinforce the obligations of employers and employees in the face of exposure to COVID-19. It found that “fancy” COVID-19 protocols were meaningless if they were not taken seriously. As we prepare for the third wave of COVID-19 in South Africa, this is a warning that must be heeded.

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