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Dismissed for going to work with Covid-19

Labour Court agrees that the employer had just cause in this unusual case.
The CCMA found the employee’s conduct 'extremely irresponsible' and 'grossly negligent' – yet ruled that the dismissal was unfair. Image: Moneyweb

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”.

Read:

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.

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Should of stolen something & been put on extended leave with full pay.. I believe that’s how it’s done cadre style..

This poor person clearly just really wanted to work. Big mistake in RSA.

Having said that, if the same person had flu pre covid with a runny nose, he would be reprimanded FOR NOT going to work..

The common cold, just as contagious with no relief bar cough medicine and a day in bed, leads to pneumonia, from which many die, possibly as many as Covid

How our world has changed!

interesting. In the US you get fired for no cause. Could’ve probably sued the employee too.

You enforce covid protocols, TB protocols, HIV protocols, and then you get killed in a traffic accident. A sane person will address the biggest risk factors first and leave the least dangerous issues for last. Of these risks, covid is the least likely to cause harm. A moving taxi is more deadly than covid.

Approx 13 000 people a year die in road accidents. The death toll so far for Covid after a year is 55 000 (and most likely significantly higher).

To be statistically correct you have to compare road fatalities to commuters, and not to the general public. Covid affects the general public. We have the highest incidence of road fatalities in the world, but I catch your drift.

Sensei quoted the wrong statisticts, Vallesneria, sorry. He should have gone with murders in RSA.

Thank you, Griet. In South Africa, the odds are quite high for a person to die a violent death in a taxi while being HIV, TB, and covid positive. That is ok as long as he wears a mask.

IMHO, even if he fully believed that Covid is a conspiracy and/or that it is not that deadly etc.. (not saying if I agree or disagree) he must have known that regardless that he was going to get up S*&t creek without a paddle doing what he did but he still carried on doing it even with red flags popping up everywhere and that the easier default option was to stay at home and be lazy with no penalty. Can someone please explain this behaviour, I always try and not go to the easy option of stupidity, does anyone else have another explanation for this.

Ridiculous verdict.

Remember the test doesn’t indicate you’re a Covid case, but that you have antibodies. According to figures released by the SA Blood Transfusion Service, about half of us are walking around with Covid antibodies, so we’ve been exposed but are not one of the unlucky very few who actually get sick. So now you go to work, having not had Covid symptoms or actual Covid, but you do have, say, a runny nose. You get tested and show antibodies.

Can you now be fired too? Can your employer hold you liable for having antibodies?

Asking the real questions, Incitatus. The CCMA was right and the Labour Court overthought this. However, the ridiculous and draconian threats and regulations against employers regarding Covid and the workplace, probably made them pursue this so aggressively.

Sorry but that is wrong. The PCR test detects the presence of the virus itself, not antibodies.

You’re ignoring the stated facts of the case to suit your argument.

To quote the article directly: “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.”

What more evidence do you want before an employer is reasonable in not allowing such an employee to come to work? The man willfully defied safety policies. Even worse, he was part of the management meant to be enforcing said policies.

I am going to a memorial on Saturday. It is a memorial for my sister who died of COVID 19. He could be the cause that some people will die of COVID 19. Could be your sister or brother or parents or a dear friend. He should be in jail for reckless negligence.

I’m sorry, but if his company decided that Covid is a top priority and that if you experience symptoms you need to stay at home and he disregarded this policy then I agree his dismissal was fair. You cannot decide to which company policies you want to adhere to depending on your personal views.

I also agree that the Covid pandemic has completely been overplayed, but as with my employer I strictly adhere to all their policies, including the Covid policies, whether I agree with them personally or not.

Totally agree, see my comments above. The Covid thing in this case is not the complete issue here or even the major issue here or the semantics that this argument brings. This employee also seems to be a problem, based on the report above you could have probably dismissed for insubordination as well.

So why would somebody come to work when they were told not to? Nothing is being said about whether his employers were actually going to pay him or not. It would be helpful if this can be clarified. The recent Spur incident was exactly the opposite and again I have to wonder whether earning a day’s pay for sick leave or not is the crux of the matter.

If I remember correctly, SA at some point said one can actually be charged with attempted murder for intentionally exposing others to the virus. I wonder what the court says around this point

End of comments.

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