Dismissed for putting others at risk: Covid-19 protocols in the workplace

A year and four months into the Covid-19 pandemic, many are still unsure as to what protocols need to be followed when coming into contact with someone who has tested positive for covid. In the Labour Court Judgment, Eskort Ltd v Mogotsi and Others (LC) (unreported case no JR1644/20, 28-3-2021) (Tlhotlhalemaje J), the employee was charged for misconduct and gross negligence.

The employee was a manager and part of the ‘Coronavirus Site Committee’ and was therefore fully aware of the health and safety warnings, advice, protocols, policies and procedures put in place at the workplace. The employee was therefore found to be grossly negligent in that he had failed to isolate, continued working, and put the lives of his colleagues at risk by not following safety protocols. His misconduct was related to his failure to disclose to the employer that he was waiting for his covid results.

There are of course those instances when employees plead ignorance. In DETAWU obo Jacobs v Quality Express (National Bargaining Council for Road Freight Logistics Industry) (case no: ECPE4805-20) (J Gruss), the employer had no written rule or standard operating procedures dealing with Covid-19. The topic, however, was discussed with staff regularly and there are flyers warning people to sanitise, wash hands and use facemasks. These talks included telling staff to self-quarantine when being tested.
In this matter, the employee had previously been tested for Covid-19 and self-isolated until he received a negative result, in which event he returned to work. The employee was well aware of some sort of protocol that had been in place.

Item 3(1) of the Labour Relations Act 66 of 1995 Codes of Good Practice on Dismissals provides that an employer’s rules must create certainty and consistency in the application of discipline. This requires that the standards of conduct be clear and made available to employees in a manner that is easily understood. Some rules or standards may be so well established and known that is not necessary to communicate them.
It was ruled, considering the damages Covid-19 has on the lives of ordinary people and how contagious the virus is, that the employee could not hide behind ignorance. Some rules and standards may be so well established and known that it is not necessary to communicate them. The employee was well aware that he should not return to work until a negative test result was received and this was exactly what he had done on a previous occasion.

While it is necessary to have policies and procedure in place at the workplace, it is also important for people to be aware of what should happen when being exposed to Covid-19 in general.
For more information relating to Employment Law kindly email us on info@hjw.co.za.

Written by Meegan Reddy – Candidate Attorney.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.