7 June 2021 by and Employment Law Alert

Different approaches to COVID-19 breaches in the workplace

Two recent awards illustrate the different approaches that may be taken by bargaining councils and the CCMA in considering dismissals based on the disregard of COVID-19 measures in the workplace.

In the case of Detawu abo Jacobs/Quality Express, the National Bargaining Council for the Road Freight Logistics Industry upheld the dismissal of Mr Jacobs, a shop steward and a truck driver, for reporting for duty knowing that he was a COVID-19 risk and not notifying management that he had been tested for the virus and that he should have been in isolation.

Jacobs arrived at work on 3 August 2020, suffering from headaches. He was told to see a doctor, which he did. Jacobs was booked off from 4 to 6 August 2020. The medical certificate recorded that Jacobs was awaiting the results of a COVID-19 test. Jacobs reported to work on 6 August 2020 to represent a fellow employee in a disciplinary hearing. On arriving at work, he handed a brown envelope to the company. The envelope was in turn handed to the operations manager who discovered two notes in the envelope – a medical certificate and a note from the clinic to record that he had taken a COVID-19 test on 4 August 2020. The following day, Jacobs was informed by his health provider that he had tested positive for COVID-19. He then telephonically notified the company of the result. Jacobs had direct contact with several employees on 6 August 2020, potentially exposing them to the virus.

At the hearing, the employee contended that he had not received training on COVID-19 measures, nor was there any policy dealing with COVID-19 workplace protocols. As such, there was no rule and accordingly he had no knowledge of any rule. The company conceded that it did not have a written policy dealing with COVID-19. However, it argued that this did not mean that there was no rule about having to self-isolate in Jacobs’ circumstances. The appropriate measures to eliminate COVID-19 were frequently advertised on television and radio. It was also accepted as a norm that if one came into contact with a person that was COVID-19 positive, that one would have to self-isolate. Furthermore, the company had verbally informed its employees that they should self-isolate should they be tested for COVID-19. Jacobs was well aware of the need to self-isolate as he had previously, in June 2020, self-isolated himself after coming into contact with a COVID-19 positive person.

The arbitrator accepted that the company may not have had rules or a policy in place dealing with measures to eliminate COVID-19. However, he found that some rules or standards were so well established that there was no need to communicate them. The COVID-19 protocols fell in this category. The arbitrator felt that Jacobs could not hide behind the fact that the company did not have a written policy, particularly considering the dangers of COVID-19 on the lives of ordinary people and how contagious the virus was. Furthermore, Jacobs had by his conduct in the past shown that he knew that he should self-isolate if there was a chance that he may have contracted the virus. Jacobs’ dismissal was found to be substantively fair.

A different approach was taken in the matter of Numsa obo Manyike/Wenzane Consulting & Construction. The Metal and Engineering Industries Bargaining Council decided that the dismissal of Mr Manyike, for pulling his face mask below his chin while conversing on his mobile phone was unfair. Manyike, a rigger, was already on a final written warning for the same offence when the incident happened.

Manyike argued that the company had never inducted its employees into the consequences of not wearing a face mask properly, nor had it told them that not wearing a face mask properly would constitute an offence in terms of its disciplinary code.

The company did not attend the arbitration hearing and the arbitrator unfortunately had only Manyike’s version before him. The arbitrator considered that the purpose of discipline in the workplace is not punitive, but corrective and rehabilitative and that the company was obliged to show that Manyike could not have benefitted from corrective action. We point out that the arbitrator failed to consider that Manyike was already on a final written warning for the same conduct and would have been aware of the rule to keep his face mask on at all times whilst in the workplace.

The arbitrator accepted that within the context of COVID-19, not wearing a mask would constitute risky behavior. He, however, noted the ongoing debate about wearing face masks and the confusion in this regard. He found that the dismissal was too harsh and as such, it was substantively unfair. There were other alternatives short of dismissal that the employer could have imposed, considering Manyike’s years of service and the negative financial impact of the dismissal will have on him. Manyike was reinstated but with no backpay.

Besides the dangers of not attending an arbitration hearing, the lesson to be learnt from especially the Manyike case is that employers should have in place COVID-19 policies or protocols which clearly set out the workplace rules for COVID-19 and the consequences of not following them. The absence of express rules may create confusion or ambiguity. As the Labour Court has held in the case of Eskort v Mogotsi, “fancy” COVID-19 protocols are not always sufficient. Employers need to take proactive steps to educate their employees and by implication, society at large about the realities of COVID-19.

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