Law firm Webber Wenzel has filed a very interesting proceeding that draws the attention of employers in a discussion of a recent decision by the Labor Court. COVID 19.
An employee, an assistant manager at a butcher in a meat processing plant, reported on his work after one of his close-knit colleagues was infected with Covid-19. He continued to report his work after experiencing his own symptoms. He also went to work after being tested positive for the virus.
He was dismissed and subsequently filed an unfair dismissal complaint with the Mediation, Mediation and Arbitration Commission (CCMA). CCMA found that his dismissal was virtually unfair.
No written warning
Employees acted “very irresponsibly,” but the employer’s disciplinary rules and procedures stated that appropriate sanctions for gross negligence were the final written warning.
CCMA discovered that the employer did not follow its own disciplinary rules and procedures and decided that the employee needed to be reinstated.
The employer then disagreed with CCMA and, after examination by the Labor Court, which determined that the dismissal was fair, took a CCMA arbitration award.
The Labor Court commented that employers need to consider whether existing Covid-19 health and safety protocols are taken seriously by employees. It doesn’t make sense for such a protocol to simply be “in place and written on paper.”
In the case review, Webber Wentzel colleagues Mehnaaz Bux, Shane Johnson, and Jenna Atkinson highlighted some facts.
- The employer in this case runs a nationwide butcher business and sells meat and cooked foods to the general public. The employee in question has been hired as a butcher’s assistant manager since May 2018. He was relatively old.
- Employers have implemented various Covid-19 policies and procedures. Employees were members of the company’s Coronavirus Sites Committee and were responsible for posting posters in the workplace and informing other employees of what to do in the event of exposure.
- Employees went in and out of work daily with colleagues. On July 1, 2020, a colleague became ill and tested positive for Covid-19 on July 20. When a colleague became ill, employees admitted that he also began to experience Covid-19 symptoms (chest pain, headache, cough). Despite being told by the management to stay home, he reported on his duties on July 10.
- Employees took the Covid-19 test on August 5, and the test returned positive on August 9. While waiting for the test results (and even after he received a positive result), the employee still reported on the work.
- In a subsequent study, the employer also found through video footage on August 10 that an employee was hugging a fellow employee who had heart surgery five years ago and recently experienced postoperative complications. did. He was also observed walking around the workplace without a mask. After contact tracing, many employees had to be sent home and self-quarantined.
Webber Wenzel said it was strange that the Labor Court ruled that the dismissal was virtually unfair, but found the employee’s conduct to be very irresponsible and gross negligence. Pointed out.
The Labor Court also said that disciplinary rules and procedures are not normative, but should be interpreted as guidelines, especially when determining appropriate sanctions.
Webber Wenzel’s argument on the case states that the Labor Court found that the Commissioner did not consider all circumstances when considering appropriate sanctions.
Is the employer’s behavior sufficient?
“Interestingly, the Labor Court questioned whether employee dismissals and employer Covid-19 policies and procedures were sufficient to curb the pandemic epidemic,” according to a discussion paper. ..
“During this pandemic, the Labor Court also questioned how employers could allow employees to roam the manufacturing floor without masks and hug other employees.”
Webber Wentzel states that this decision is important for both employers and employees, as it emphasizes that employers need to determine whether existing health and safety protocols are being followed in the workplace. I am.
“Covid-19 has become a reality for many employers and a new norm for businesses,” said Webber Wentzel, who said that some laws, regulations and guidelines issued under current disaster management regulations, And what is included in other laws.
Court documents will be much more interesting and will entertain reading if the situation is not serious.
The ruling states that the facts of this case are extraordinary. “These show that we need to do more, both at work and in our community, to ensure that employers, employees, and the general public are sensitive to reality. This is to further strengthen the obligations of employers and employees in the face of this pandemic and exposure to Covid-19, or in the event of exposure. ”
Court documents detail the situation. Employee Stuurman Magotsi went in and out of work daily with his colleague Philani Mchunu.
On July 1, 2020, Muthunu felt sick and consulted with a practitioner on the same day. After that, Muthunu was booked for sick leave from July 1st to 3rd. He extended his sick leave on July 4, and was subsequently admitted to the hospital on July 6.
According to court documents, Mogossi also began to experience chest pain, headaches and coughs when Mutunu first became ill.
Magossi consulted with a traditional healer (who happened to be his wife) who booked him on July 6th and 7th, as well as July 9th and 10th.
Mogossi was informed by management that he was at home, but nevertheless, after July 20 when he noticed that Muthunu tested positive for Covid-19, and even after receiving his own test results. Reported on obligations.
Employer Eskort Limited told the court that he had begun disciplinary action after reporting that Mogotsi had worked while he knew he was exposed to the coronavirus, and even after he was positive.
“He personally came to the premises and handed him a copy. [Covid-19 test] “Results,” according to court documents.
Mogossi argued that he did not know he needed to be quarantined. He hugged another colleague at work on August 10 and admitted that he walked the manufacturing floor without a mask.
The court dismissed his defense, stating that he should have known the protocol in his role as a manager.
“More importantly, Mogossi is also a member of the in-house coronavirus site committee, and above all, what to do and what not to do to employees, especially in the case of exposure or when they suspect it. It was their responsibility to put up posters throughout the workplace. They may have been exposed to Covid-19 and the symptoms they need to be aware of, “said Judge Edwin Tlhotlhalemaje at his discretion. ..
“For reasons that are clearly incomprehensible, through his carefree actions, Mogossi puts everyone he came in contact with, whether at work or in his residence, at great risk,” the judge said. ..
“Especially in situations where he knew or should have known the consequences of his actions, especially after noticing the consequences of Muthunu, there is even more reason why he goes to work masklessly hugging fellow employees. It’s awkward.
“There is a Covid-19 term created for this kind of behavior, which respects the dignity of Mogossi and refrains from repeating this judgment due to its derogatory nature,” said Judge Tlhotlhalemaje. Said.
“In the midst of all the tremendous harm he caused, and it was clearly foreseen, Mogossi could only come up with the now frequently used defenses he had sacrificed. ..
“He did not show any form of disadvantage to his actions. At best, the evidence presented before the Secretary was that Mogossi was an employee who was not only terribly negligent and reckless, but also dishonest. It showed that there was, “said the judge.
“He was unable to disclose his health status for a period of time, tried to hide the date he received the Covid-19 test results, and completely ignored all existing health and safety protocols.”
Webber Wenzel argued that it is important for employers to revise disciplinary rules and procedures to address employees’ failure to comply with Covid-19’s health and safety protocols at work. I conclude.
Dismissed to go work on Covid-19
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