Eskort Ltd v Mogotsi and Others (LC) (unreported case no JR1644/20, 28-3-2021) (Tlhotlhalemaje J)
In a response to the COVID-19 pandemic, the applicant employer, operating as a butchery, introduced COVID-19 policies and protocols at its workplace. These policies and protocols informed employees what symptoms to watch out for and to immediately self-isolate themselves should an employee display any one of the listed symptoms. Included in the policy was an obligation on the employee to inform the employer that they underwent a COVID-19 test.
The respondent employee travelled to work with his colleague, Mr Mchunu, in a private vehicle. On 1 July 2020, Mchunu fell ill and was later hospitalised, after which he was diagnosed with COVID-19 on 20 July 2020.
Around the same time Mchunu took ill, the employee himself experienced headaches, chest pains and coughs. The employee was booked off from work by a traditional healer from 6 to 7 and 9 to 10 July 2020. Despite his manager instructing the employee to stay at home, the employee returned to work on 10 July 2020 and remained at work even when he found out that Mchunu had tested positive for COVID-19.
On 5 August 2020, the employee took a COVID-19 test and on 9 August was informed that he had tested positive.
While awaiting his results, the employee continued to come to work on 7 and 9 August and returned on 10 August 2020 to personally hand in his results to his manager.
On the same day, the employee was observed walking around the store without a mask and hugging another colleague who suffered from comorbidities.
On his return to work on 28 August 2020, the employee was charged and dismissed for gross misconduct and gross negligence.
The misconduct charge related to the employee’s failure to inform his employer that he had on 5 August 2020 taken a COVID-19 test. The charge of gross negligence was in respect of the employee’s failure to follow the COVID-19 policies in that he –
The employee challenged the fairness of his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA). He argued that the employer victimised him by questioning the medical certificate he produced and changed his job description by giving him new duties. This according to the employee was the true reason for his dismissal.
The arbitrator rejected the employee’s defence and found that on the evidence, the employee was indeed guilty of both charges preferred against him. However, the arbitrator found that dismissal was not an appropriate sanction; the employer’s own disciplinary code called for a final written warning and thus the employer deviated from its own code. This fact, together with the arbitrator’s reading of the CCMA Guidelines on Misconduct Arbitration, led him to find that the employee’s dismissal was substantively unfair. The arbitrator awarded the employee reinstatement without back pay and further held that he be issued with a final written warning.
In setting aside the award on review, the court held:
‘Despite having stated that he had regard to all the provisions he had cited, it had clearly escaped the Commissioner’s reasoning that a disciplinary code and procedure, is not prescriptive as correctly pointed out on behalf of the applicant, and that it is merely a guideline, insofar as issues of sanctions are concerned.
Ultimately, irrespective of what the disciplinary code and procedure stipulates, in determining the appropriateness of a sanction of dismissal, the Commissioner is obliged to make an assessment of the nature of the misconduct in question, determine if whether, combined with other factors and the evidence led, the misconduct in question can be said to be of gross nature. Once that assessment is made, and the invariable conclusion to be reached is that the misconduct in question is of such gross nature as to negatively impact on a sustainable employment relationship, then the sanction of dismissal will be appropriate.’
On the common cause facts, the court found that the employee’s actions were reckless and that he endangered the lives of his colleagues, customers and their own families. He displayed blatant disregard for the employer’s COVID-19 policies and for no reasonable explanation continued with a care-free attitude. For these reasons, the court was satisfied that the sanction of dismissal was appropriate and substituted the award with a finding that the dismissal was substantively fair.
In closing the court did not spare the employer as well and raised the following questions:
‘The questions that need to be posed despite the applicant having all of these fancy COVID- 19 policies, procedures and protocols in place, is whether more than merely dismissing employees for failing to adhere to the basic health and safety protocols is sufficient in curbing the spread of the pandemic? How can it be, that in the midst of the deadly pandemic, the applicant still allows mask-less “huggers” walking around on the shop floor? Of further importance is notwithstanding all of these protocols and awareness campaigns about this pandemic, why would any employee in the workplace, especially one with comorbidities, hug or reciprocate hugging in the middle of a pandemic? Does a basic principle such as social distancing mean anything to anyone at the workplace? Furthermore, what is the responsibility of the applicant and its employees when other employees or even customers, are seen roaming the workplace or shop floor mask-less? Of even critical importance is what steps were taken in ensuring the health and safety of all the employees and customers, where at least from 20 July 2020, Mchunu’s test results were known? All of these questions need to be addressed in the light of Mogotsi’s version that after Mchunu’s test results were made known, business at the store had continued as usual, hence he had continued reporting for duty.’
Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).
This article was first published in De Rebus in 2021 (July) DR 38.
