[South Africa] Precedent-setting case of COVID infected employee fired for going to work

[South Africa] Precedent-setting case of COVID infected employee fired for going to work
13 May 2021

The Labor Court in South Africa has shown little sympathy for an employee who was dismissed for failing to adhere to COVID-19 protocols by attending work knowing he had been exposed to the virus, thereby acting with little regard for the health and safety of colleagues and customers. The Court also cautioned employers to be more robust in ensuring the health and safety of their staff. Lexology breaks down the case and its implications.

The case

Is it fair to dismiss an employee who attended work knowing he had been exposed to COVID-19? Absolutely, the Labor Court stated in a recent judgement (Eskort Limited v Stuurman Mogotsi and others, case number JR1644/20). The court was not only critical of employees who act with scant regard for the health and safety of their colleagues and customers but also cautioned employers to act more decisively in ensuring the health and safety of their staff. 

Mr M, the employee in question, travelled to work every day by car, with a colleague. His colleague fell ill and Mr M also experienced symptoms associated with COVID-19. He was then booked off work due to this illness on two occasions. The employer advised Mr M to stay at home, having been signed off sick. 

Mr M, however, persisted in coming to work. He continued to do even after he became aware that his ride-sharing colleague had tested positive for COVID-19. In addition, after he received his own positive test results he reported for duty in person to hand in his results. In the period when he had undergone the test but was awaiting the test results, Mr M continued to attend the workplace and interact with other employees. 

After receiving the result, he was seen walking around in the workplace without a mask and hugging another employee (who had comorbidities). Mr M was sent home and then faced a disciplinary hearing upon returning to the office more than a fortnight later. 

The employer dismissed Mr M for (i) failing to notify it that he suffered from COVID-19 symptoms and (ii) neglecting to take appropriate steps after receiving his test results, including declining to self-isolate, continuing to attend work and not practising social distancing at work. 

The employer's concerns about Mr M were compounded by the fact that he was part of the employer's Coronavirus Site Committee and was responsible for putting up the posters to create awareness of do's and don'ts in respect of exposure. Mr M claimed that he had informed the employer of his contact with his ill colleague but was not given clear direction as to the steps he ought to have taken. 

At the employment tribunal, the presiding commissioner found that Mr M's conduct was "extremely irresponsible" and that he was "grossly negligent". To the amazement of the employer (and the court subsequently), the commissioner awarded the employee reinstatement after finding that dismissal was not the appropriate remedy. 

The court (on review) was critical of the commissioner's handling of the matter, especially his reasoning in holding the employer to suggested sanctions in its own disciplinary code, rather than considering the merits and determining the appropriate sanction on the facts. The court was clear that the employee's conduct negatively impacted a sustainable employment relationship, and thus dismissal was to be the appropriate sanction. 

The employer did not escape the court's chagrin. The judge chastised employers for not taking decisive action in ensuring the health and safety of staff, stating, "It is one thing to have all the health and safety policies in place and on paper. These are however meaningless if no one, including employers, takes them seriously." The court upheld the review application and held that Mr M's dismissal was indeed fair. 

Key takeaways

Employers should take a cue from this judgement and be more robust in their management of employee conduct in the workplace, where it impacts the health and safety of employees and customers. Employees who fail to adhere to COVID-19 protocols should expect little sympathy from employers, the employment tribunal or the court. 

Employers do not need to tiptoes around employees who act callously or hold conspiracy-theory or unorthodox views about the impact of the virus where this impacts on their workplace conduct. Failing to believe in the impact of the virus is not likely to be a valid defence against dismissal for refusing to adhere to workplace protocols.


Source: Lexology

The Labor Court in South Africa has shown little sympathy for an employee who was dismissed for failing to adhere to COVID-19 protocols by attending work knowing he had been exposed to the virus, thereby acting with little regard for the health and safety of colleagues and customers. The Court also cautioned employers to be more robust in ensuring the health and safety of their staff. Lexology breaks down the case and its implications.

The case

Is it fair to dismiss an employee who attended work knowing he had been exposed to COVID-19? Absolutely, the Labor Court stated in a recent judgement (Eskort Limited v Stuurman Mogotsi and others, case number JR1644/20). The court was not only critical of employees who act with scant regard for the health and safety of their colleagues and customers but also cautioned employers to act more decisively in ensuring the health and safety of their staff. 

Mr M, the employee in question, travelled to work every day by car, with a colleague. His colleague fell ill and Mr M also experienced symptoms associated with COVID-19. He was then booked off work due to this illness on two occasions. The employer advised Mr M to stay at home, having been signed off sick. 

Mr M, however, persisted in coming to work. He continued to do even after he became aware that his ride-sharing colleague had tested positive for COVID-19. In addition, after he received his own positive test results he reported for duty in person to hand in his results. In the period when he had undergone the test but was awaiting the test results, Mr M continued to attend the workplace and interact with other employees. 

After receiving the result, he was seen walking around in the workplace without a mask and hugging another employee (who had comorbidities). Mr M was sent home and then faced a disciplinary hearing upon returning to the office more than a fortnight later. 

The employer dismissed Mr M for (i) failing to notify it that he suffered from COVID-19 symptoms and (ii) neglecting to take appropriate steps after receiving his test results, including declining to self-isolate, continuing to attend work and not practising social distancing at work. 

The employer's concerns about Mr M were compounded by the fact that he was part of the employer's Coronavirus Site Committee and was responsible for putting up the posters to create awareness of do's and don'ts in respect of exposure. Mr M claimed that he had informed the employer of his contact with his ill colleague but was not given clear direction as to the steps he ought to have taken. 

At the employment tribunal, the presiding commissioner found that Mr M's conduct was "extremely irresponsible" and that he was "grossly negligent". To the amazement of the employer (and the court subsequently), the commissioner awarded the employee reinstatement after finding that dismissal was not the appropriate remedy. 

The court (on review) was critical of the commissioner's handling of the matter, especially his reasoning in holding the employer to suggested sanctions in its own disciplinary code, rather than considering the merits and determining the appropriate sanction on the facts. The court was clear that the employee's conduct negatively impacted a sustainable employment relationship, and thus dismissal was to be the appropriate sanction. 

The employer did not escape the court's chagrin. The judge chastised employers for not taking decisive action in ensuring the health and safety of staff, stating, "It is one thing to have all the health and safety policies in place and on paper. These are however meaningless if no one, including employers, takes them seriously." The court upheld the review application and held that Mr M's dismissal was indeed fair. 

Key takeaways

Employers should take a cue from this judgement and be more robust in their management of employee conduct in the workplace, where it impacts the health and safety of employees and customers. Employees who fail to adhere to COVID-19 protocols should expect little sympathy from employers, the employment tribunal or the court. 

Employers do not need to tiptoes around employees who act callously or hold conspiracy-theory or unorthodox views about the impact of the virus where this impacts on their workplace conduct. Failing to believe in the impact of the virus is not likely to be a valid defence against dismissal for refusing to adhere to workplace protocols.


Source: Lexology

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