Employees beware! You could be fairly dismissed for disregarding your employer’s COVID-19 policies, procedures and protocols and for attending at the workplace knowing that you have either been exposed to the COVID-19 virus or are awaiting COVID-19 test results.
In the recent Labour Court decision in the matter of Escort Limited v Stuurman Mogotsi and Others, the Court had to determine the fairness of the dismissal of an employee on the basis of gross misconduct and negligence related to the employee’s failure to follow COVID-19 related health and safety protocols, which had been implemented at the workplace.
The facts of the case can be summarised as follows:
• Mogotsi travelled to and from work daily with a colleague in a private vehicle. His colleague did not feel well which resulted in the colleague been booked off sick, subsequently admitted to hospital and testing positive for COVID-19.
• At the time that his colleague fell ill, Mogotsi started experiencing chest pains, headaches and coughs. He consulted with a traditional healer who booked him off work for a short period of time. Despite his employer instructing him to stay at home, he nevertheless reported for duty at the end of his sick leave period, well knowing that his colleague was COVID-19 positive.
• 16 (sixteen) days after being informed that his colleague had proved COVID-19 positive Mogotsi took a COVID-19 test and tested positive. Despite having taken a COVID-19 test, Mogotsi reported for duty during the period that he was awaiting the test results as well as the day after he received the test results.
• After investigations by his employer, it was discovered that a day after Mogotsi had received his COVID-19 test result, he was observed on video footage at the workplace, hugging a fellow employee who happened to have a heart condition. The video footage further observed Mogotsi walking around in the employer’s premises without a mask. Mogotsi’s conduct resulted in a number of employees with whom he had been in contact, being sent home to self-isolate, many of whom had comorbidities.
• Mogotsi’s defence was that whilst he was aware of his colleague’s COVID-19 positive test result and had informed management that he had been in contact with his colleague, he had not received any clear directive from his employer as to what he was required to do but had rather been subjected to victimisation when his medical certificates were questioned and he was informed of changes to his job description.
• Mogotsi alleged that he did not know that he needed to self-isolate after having received his COVID-19 test result. His excuse for not wearing a mask in the workshop was that he was on a phone call at the time and needed to remove his mask in order to have a conversation with the caller.
The Court rejected Mogotsi’s contention that he was dismissed on account of being victimised and found that the sanction of dismissal in this case was appropriate, given the fact that:
• Mogotsi had been aware that he had been in contact with his colleague who had tested positive for COVID-19. He had experienced known symptoms associated with COVID-19. He had recklessly endangered not only the lives of his colleagues and customers at the workplace but also those of his close family members and other people with whom he had been in contact by not self-isolating.
• Mogotsi’s conduct was irresponsible and reckless. He had ignored all COVID-19 health and safety warnings, advice, protocols, policies and procedures put in place at the workplace.
• The consequences of Mogotsi’s conduct were not only dire for his employer but equally so for all of those employees with whom he had contact, his own family and the community.
The Court found that the gross nature of Mogotsi’s conduct was such that a trust and working relationship between him, his employer and his fellow employees could not be sustainable.
This judgment is a clear warning to all employees that breach of COVID-19 policies, procedures and protocols could lead to dismissal. Furthermore, employers need to be aware that they too have an obligation to ensure that all COVID-19 policies, procedures and protocols are strictly adhered to by all employees in the workplace.
