Whether we want to accept it or not, the reality is that the Covid pandemic is affecting all spheres of our lives, that is: the personal, the emotional, the social, the religious and, within this particular context: the employment sphere.
The intrusive nature of the Corona virus has necessitated that employers are obliged to adapt the way in which workplace rules are structured. In common law, the employer is legally obliged to provide safe working conditions for its workforce, not only physically, but also emotionally. The advent of Covid-19 now places particular emphasis on this obligation.
While there are, currently, not many court cases having dealt with the impact Covid has on the employer/employee relationship to provide us with relevant case law in this regard, there was a recent Labour Court case which placed the spotlight on the behaviour of employees and employers within Covid context.
In this blog, I will unpack the findings of this court case in order to glean from it some useful guidelines regarding how to deal with Covid in the workplace.
The Labour Court case in question is: Eskort Limited v Stuurman Mogotsi, the CCMA & Simpiwe Saki Ngada N.O. (2021).
The disciplinary charge which led to the employee’s dismissal
Stuurman Mogotsi (Stuurman) was the assistant butchery manager in a butchery with a national footprint. He was dismissed on two specific charges, namely that of:
- gross misconduct related to his failure to disclose to his employer that he took a Covid-19 test and was awaiting the result; and
- gross negligence in that he, upon receiving a positive Covid-19 test result:
- failed to self-isolate; and
- continued working on 3 consecutive days, thus putting the lives of his colleagues at risk; and
- failed to follow the health and safety protocols which applied in the workplace, including adhering to social distancing.
Background facts
Stuurman travelled daily with a colleague to and from work in a private vehicle.
The colleague tested positive for Covid-19.
At the time, Stuurman also felt ill and experienced some symptoms associated with Covid-19.
Stuurman then consulted a traditional healer, who, incidentally, was his wife. He was booked off sick for a few days.
His employer, when eventually learning of his situation, advised him to stay at home for the time being.
Stuurman however returned to work once the period he was booked off sick expired, while knowing that the colleague he travelled with had tested positive for Covid-19.
Stuurman then took a Covid-19 test himself and was informed of the positive result on 09 August 2020.
Stuurman still reported for duty on 07, 09 & 10 August 2020 and personally handed in the positive result of the Covid-19 test he underwent.
His employer had Covid-19 policies, procedures and protocols in place and regularly reminded employees of such directives via internal memoranda, etc.
Stuurman himself was a member of the in-house Corona Virus Committee, which was responsible for putting up awareness posters, informing employees regarding the correct Covid-related behaviour in the workplace, etc.
Video footage showed Stuurman, on 10 August 2020 (the day after learning that he tested positive for Covid-19), hugging a colleague with comorbidity, also walking around the workplace without wearing a mask.
This resulted in the employer having been obliged to send those having had contact with Stuurman home to self-isolate.
The employer then dismissed Stuurman, having found him guilty as charged, during an internal disciplinary enquiry.
Stuurman’s response to the charges levelled against him
Stuurman admitted that he was aware of the fact that the colleague he travelled with tested positive for Covid-19 but pointed out that he informed his employer of this fact and received no clear directive of what to do. Instead, he claimed that he was victimised in that his medical certificate was questioned, and his job description was changed.
Stuurman also pleaded ignorance of what exactly to do when testing positive for Covid-19 e.g., to self-isolate.
He admitted having hugged the colleague in question and not wearing a mask but offered some excuse in the latter regard related to having had to make cell phone calls at the time.
CCMA proceedings and award
After having disputed the fairness of his dismissal at the CCMA and subsequent to a failed conciliation attempt, Stuurman’s case was heard at arbitration.
The commissioner found as follows after having heard Stuurman’s case:
- That Stuurman’s claim of being victimised was rejected.
- That the employer had no clear rule or instruction to employees related to reporting to the employer that the employee underwent a Covid-19 test.
- That there however was a rule in place compelling employees to inform the employer when suspecting having been infected, which, by implication, required employees to inform the employer of their Covid-19 tests.
- Consequently, Stuurman was found guilty of failing to report his Covid-19 test to his employer.
- The commissioner regarded Stuurman’s behaviour, as per the charge sheet, as “extremely irresponsible” and thus grossly negligent.
- Regarding the appropriate sanction, the commissioner interpreted the Disciplinary Code of the employer rather narrowly and mechanistically, finding that a sanction of the issuing of a final written warning, as is prescribed in case of having been found guilty of gross negligence, would, in the circumstances, have been a more appropriate sanction.
- The commissioner found the dismissal of Stuurman to have been substantively unfair. Stuurman was reinstated, without back-pay, but with a final written warning being issued.
Review by the Labour Court
The employer took the arbitration award on review to the Labour Court.
The first hurdle the court had to overcome, was to assess whether the award issued by the commissioner was a reasonable award. In other words, is the decision reached by the commissioner one that a reasonable decision maker could not reach, thus making the award reviewable. Applying the relevant test for review, the court concluded that the award was indeed reviewable.
The court reiterated that the mere mention of allegations of “victimisation” or “discrimination” does not necessarily deprive the CCMA of jurisdiction to entertain a matter referred to it. The commissioner has to consider (on the facts) the real nature of the dispute. In this regard, applying the principle of “substance over form” and thus looking beyond the subjective description the employer might have given of the matter at hand.
The court noted that the commissioner, in making its award, made reference to “the LRA provisions”, “CCMA guidelines” and “Codes of Good Practice”, but pointed out that the mere mentioning of these determining factors, without applying it to the facts of the case, boils down to an exercise in futility.
The commissioner, having found that Stuurman’s conduct, within context of the pandemic, was “extremely irresponsible” and therefore grossly negligent, by itself ought to have rendered the dismissal of Stuurman substantively fair.
The importance the commissioner placed on the provisions of the employer’s Disciplinary Code in determining the appropriateness of the sanction, the court found to be misplaced in that such code is not prescriptive, but rather a mere guideline for decision making.
The court eventually found that Stuurman’s dismissal was substantially fair in the circumstances.
Learning points to be gleaned from this judgement
- The importance of the need to consider the totality of circumstances as stated in the Sidumo-case (cross reference the blog titled: “Sidumo-considerations”).
- Acting recklessly when experiencing Covid-related symptoms and more so, after having tested positive for Covid and being aware of the relevant protocols in place, is inexcusable conduct in the workplace and beyond.
- Concealing the experiencing of Covid-related symptoms, having undergone the Covid-test, as well as the date on which a positive test result was made known (as in Stuurman’s case) are acts of dishonesty.
- The degree of seriousness which the employer (and employees in general) attaches to the danger posed by the pandemic in the workplace, will inevitably come under the spotlight.
- In the case at hand, it appeared that, notwithstanding having Covid-related policies, procedures, and protocols in place, not much of that actually translated into behavioural awareness on the shopfloor, as preventative measures such as self-isolation, social distancing and mask wearing still were allowed to be ignored by the perpetrator and employees without the outcry one would have expected.
- It is advisable for employers not only to ensure that they have the necessary Covid-policies, -procedures and -protocols in place, but also making sure that these measures are internalised among employees and management to the point of it actually being taken seriously.
The advent of Covid has a profound impact on the workplace and the checks and balances that need to be in place to enable the employer to adhere to its common law obligation to ensure that the employment environment is Covid-safe for all concerned. Mere lip-service is not enough – your policy, procedures and protocols in this regard have to be functional and applied in practice.
