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Problem
Whether or not the dismissal of an worker who attended work while awaiting a Covid-19 take a look at outcome, who continued to report back to work after the Covid-19 take a look at outcome got here again constructive and who did not observe well being and security protocols within the office, was honest.
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Abstract
The dismissal of an worker who reported to work whereas awaiting a Covid-19 take a look at outcome, who did not self-isolate after receiving a constructive Covid-19 take a look at outcome, who did not put on a masks within the office and failed to stick to social distancing protocols, was honest.
Information
Within the case of Eskort Restricted v Mogotsi and others [2021] 8 BLLR 811 (LC), the Labour Courtroom needed to contemplate the above subject. The information of this case are briefly as follows. The worker was an assistant butchery supervisor employed on the applicant. He was additionally a member of the applicant’s in-house ‘Coronavirus Web site Committee’ and was accountable for, amongst others, informing different staff of the process to be adopted in the event that they had been uncovered to Covid-19 in addition to signs they need to pay attention to..
The worker used to journey to and from work with a colleague who had exhibited Covid-19 signs and was booked off from work for 4 days. His colleague was admitted to a hospital a couple of days later and was instructed that he had examined constructive for Covid-19.
On the time that his colleague initially fell ailing, the worker started experiencing chest pains, complications and coughs. He was booked off from work from 6 to 10 July 2020. Nonetheless, he nonetheless reported for work on 10 July 2020. The worker remained reporting for work even after he turned conscious that his colleague that he travelled with had examined constructive for Covid-19.
The worker underwent a Covid-19 take a look at on 5 August 2020 and was knowledgeable on 9 August 2020 that he had examined constructive. Nonetheless, the worker had nonetheless reported for work on 7, 9 and 10 August 2020. In truth, he personally got here to the employer’s premises at hand in his constructive outcomes.
The worker was noticed on video footage on the office hugging a colleague a day after he had examined constructive. The colleague he was hugging had not too long ago skilled post-surgery problems. The video footage additionally confirmed the worker strolling across the office with out a masks.
The worker was charged with (i) gross misconduct regarding his alleged failure to open up to his employer that he went for a Covid-19 take a look at and was awaiting his outcomes; and (ii) gross negligence in that after his Covid-19 take a look at outcome got here again constructive, he continued working and had subsequently put the lives of his colleagues in danger. Moreover, throughout this era it was alleged that he had did not abide by the well being and security protocols within the office. He was dismissed.
Following his dismissal, the worker referred an unfair dismissal dispute to the CCMA on the grounds, amongst others, that he had not been supplied with any clear path or instruction from the employer and that he was “subjected to victimisation.”
The CCMA held that the worker was required to tell the employer that he underwent a Covid-19 take a look at and was responsible of failing to report his take a look at to the applicant The worker was discovered to be grossly negligent and ‘extraordinarily irresponsible’ as he had reported for responsibility after he acquired a constructive Covid-19 take a look at outcome, failed to tell the employer of similar, hugged fellow staff and walked across the office with out a masks on.
Nonetheless, the CCMA held that within the circumstances, the sanction of dismissal was not acceptable contemplating the employer’s disciplinary code. The conduct, as exhibited by the worker known as for the sanction of a ultimate written warning by way of the disciplinary code. Because the employer couldn’t justify the sanction of dismissal, the CCMA held that it was substantively unfair and ordered that the worker be reinstated with out back-pay and a ultimate written warning be positioned on his file.
Labour Courtroom’s analysis
On overview, the Labour Courtroom (LC) held that the findings made by the CCMA Commissioner had been totally disconnected with the proof that was positioned earlier than him. The Commissioner had concluded that the worker’s actions had been ‘extraordinarily irresponsible’ within the context of the Covid-19 pandemic and this, the LC acknowledged, ought to have confirmed the sanction of dismissal and that the employer’s disciplinary code was merely a suggestion insofar as issued of sanctions had been involved.
The LC emphasised that the Commissioner was obliged to evaluate the character of the misconduct in query and decide if the misconduct of the worker might be mentioned to be of gross nature. As soon as that evaluation was made, the Commissioner would have reached the invariable conclusion that the misconduct in query was of such gross nature as to negatively impression on a sustainable employment relationship, the sanction of dismissal would have been acceptable. The Commissioner had failed to contemplate the totality of the circumstances when contemplating the appropriateness of the sanction of dismissal.
Finally, the LC held that the dismissal of the worker was acceptable given the truth that:
a. he was conscious that he was in touch with an individual who had examined constructive for Covid ‑19 and had himself skilled signs;
b. he had endangered the lives of everybody on the office together with his colleagues, their households and communities;
c. he was a member of the ‘Coronavirus Web site Committee’, he ought to have simply recognised his Covid-19 signs and may have recognized what to do when in touch with uncovered to somebody who had examined constructive for Covid-19;
d. his conduct was thoughtless and nonchalant in that he ignored all well being and security protocols within the office;
e. he walked across the office with out a masks and hugging colleagues, thereby inserting everybody he had been in touch with at nice danger;
f. he didn’t present any type of contrition on his half. He was additionally dishonest in that he sought to hide the date upon which he acquired his Covid-19 take a look at outcomes.
The LC concluded that at no level was the worker victimised. In truth, all of the proof put ahead by the employer pointed to the worker being grossly negligent, reckless and dishonest. Subsequently, a belief and dealing relationship between the employer and employer might now not be sustainable.
The LC put aside the Commissioner’s award and held that the worker’s dismissal was substantively honest.
Significance of the case
This case emphasises the duty positioned on staff to at all times abide by Covid-19 well being and security protocols within the office, because the failure to take action could end in termination of their employment.
Jacques van Wyk, Director & Andre van Heerden, Senior Affiliate, Werksmans Attorneys
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