Friday, January 21

Can you just be fired for not following COVID protocols in the workplace?


If the dismissal of an employee who attended work while waiting for the Covid-19 test result, who continued to report for work after the Covid-19 test result came back positive and who did not follow health and safety protocols in the workplace, it was fair.

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The firing of an employee who reported to work while waiting for the Covid-19 test result, who did not isolate himself after receiving a positive Covid-19 test result, who did not wear a mask in the workplace and did not adhered to social distancing. protocols, it was fair.


In the case of Eskort Limited v Mogotsi et al. [2021] 8 BLLR 811 (LC), the Labor Court had to consider the above issue. The facts of this case are briefly as follows. The employee was an assistant butcher manager employed by the applicant. He was also a member of the applicant’s internal ‘Coronavirus Site Committee’ and was responsible, among others, for informing other employees about the procedure to follow if they were exposed to Covid-19, as well as the symptoms they should be aware of. ..

The employee used to travel to and from work with a colleague who had exhibited Covid-19 symptoms and was fired from work for four days. His colleague was admitted to a hospital a few days later and was told he had tested positive for Covid-19.

By the time his colleague initially fell ill, the employee began experiencing chest pains, headaches, and a cough. He left work from July 6 to 10, 2020. However, he reported for work on July 10, 2020. The employee continued to report for work even after realizing that his colleague he was traveling with had tested positive for Covid -19. .

The employee underwent a Covid-19 test on August 5, 2020 and was informed on August 9, 2020 that he had tested positive. However, the employee had still reported to work on August 7, 9 and 10, 2020. In fact, he personally went to the employer’s premises to deliver his positive results.

The employee was observed in video footage at the workplace hugging a colleague a day after he tested positive. The colleague I was hugging had recently experienced postoperative complications. Video footage also showed the employee walking around the workplace without a mask.

The employee was charged with (i) serious misconduct related to his alleged failure to disclose to his employer that he underwent a Covid-19 test and was awaiting its results; and (ii) gross negligence in the sense that after his Covid-19 test result came back positive, he continued to work and thus put the lives of his colleagues at risk. In addition, during this period it was alleged that he had not complied with health and safety protocols in the workplace. He was fired.

Following his dismissal, the employee referred an unfair dismissal dispute to the CCMA on the grounds, among others, that he had not been provided with any clear direction or instruction from the employer and that he was “subject to victimization.”

The CCMA held that the employee was required to inform the employer that he underwent a Covid-19 test and that he was guilty of failing to report his test to the applicant. duty after he received a positive Covid-19 test result, he failed to inform the employer of the same, hugged his co-workers and walked around the workplace without a mask.

However, the CCMA held that under the circumstances, the dismissal sanction was not appropriate considering the employer’s disciplinary code. The conduct, as exhibited by the employee, required the sanction of a final written warning in terms of the disciplinary code. As the employer could not justify the termination sanction, the CCMA held that it was substantially unfair and ordered that the employee be reinstated without back pay and that a final written warning be included in his file.

Evaluation of the Labor Court

On review, the Labor Court (LC) held that the findings made by the CCMA Commissioner were completely disconnected from the evidence presented to him. The Commissioner had concluded that the employee’s actions were ‘extremely irresponsible’ in the context of the Covid-19 pandemic and this, stated LC, should have confirmed the dismissal sanction and that the employer’s disciplinary code was simply a guideline in the The extent to which it was issued was about penalties.

The LC emphasized that the Commissioner was required to assess the nature of the misconduct in question and determine whether the employee’s misconduct could be said to be of a serious nature. Once that assessment had been made, the Commissioner would have invariably concluded that the misconduct in question was of such a serious nature that it adversely affected a sustainable employment relationship, the sanction of dismissal would have been appropriate. The Commissioner had not taken into account the totality of the circumstances when considering the relevance of the sanction of dismissal.

Ultimately, the LC held that the dismissal of the employee was appropriate given that:

a. knew that he was in contact with a person who had tested positive for Covid-19 and that he himself had experienced symptoms;

B. had endangered the lives of everyone in the workplace, including his colleagues, their families and communities;

C. was a member of the ‘Coronavirus Site Committee’, he should have easily recognized his Covid-19 symptoms and should have known what to do when in contact with someone who had tested positive for Covid-19;

D. his conduct was inconsiderate and carefree in the sense that he ignored all health and safety protocols in the workplace;

me. he walked around the workplace without a mask and hugged his colleagues, putting everyone with whom he had been in contact at great risk;

F. showed no form of contrition on his part. He was also dishonest because he tried to hide the date he received the Covid-19 test results.

The LC concluded that at no time was the employee victimized. In fact, all the evidence presented by the employer pointed to the employee being negligent, reckless and dishonest. Therefore, a trusting and working relationship between employer and employer could no longer be sustainable.

The LC overturned the Commissioner’s award and held that the employee’s dismissal was substantially fair.

Importance of the case

This case emphasizes the obligation placed on employees to always comply with Covid-19 health and safety protocols in the workplace, as failure to do so may result in the termination of their employment.

Jacques van Wyk, Director and Andre van Heerden, Senior Associate, Werksmans Attorneys

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