Can you be dismissed for going to work with Covid-19?

18 May 2021,  Sinenhlanhla Khoza 589

We all understand that an employer is obligated to create an environment which is safe and without risk to the health of his /her employees, as far as it is reasonably practicable to do so. The corresponding duty of the employee is to take reasonable care for the health and safety of himself and of other people who may be affected by his or her actions. 

Considering the deadly impact caused by Covid-19, it is no surprise that harsh consequences may follow when an employee fails to abide by the protocols put in place to limit the spread of the virus in the workplace. 

Recently, in the case of Eskort Limited v Stuurman Mogotsi & 2 Others, the Labour Court had to determine the fairness of a dismissal of an employee (“Mr Mogotsi”) for gross misconduct and gross negligence relating to his failure to observe the Covid-19 protocols which had been put in place by his employer.  

In the arbitration proceedings, the Commissioner had found the dismissal of the employee substantively unfair on account of the employer having failed to justify the sanction of dismissal, ordered retrospective reinstatement and for the sanction of dismissal to be replaced with a final written warning. 

In this particular case, the employee had previously been in contact with his colleague whom he later discovered had tested positive for Covid-19. At the time of receiving this information the employee had also begun to experience Covid-19 related symptoms. He nevertheless continued to report for duty even after having been advised by management to stay at home. 

The employee subsequently took a Covid-19 test and was informed that he had tested positive. Notwithstanding his results, he continued to report for duty and had hand-delivered the copy of his results to the premises of the employer. In fact, a day after receiving his result the employee was spotted on video footage hugging a fellow employee and walking around the premises without a facial mask. Upon his positive results becoming known to the employer, a number of employees who had been in contact with him, had to self-isolate.  

The Court found that while the employer had no rule in the workplace which obligated an employee to inform management when they had undertaken a test, there was a rule that required employees to inform the employer when they suspected that they had been infected. The employee had been a member of the “Coronavirus Site Committee” in the workplace, he knew what he ought to have done after having been advised of his contact with a colleague who had tested positive, and even when the employee himself tested positive. However he continued reporting for duty as if everything was normal. 

The Court found that the employee’s conduct had been irresponsible and egregious to the extreme as he failed to observe all health and safety related policies and procedures that had been put in place of which he was fully aware. Through his reckless conduct, he had placed the lives of his fellow colleagues and their families at greater risk.  

The decision of the Commissioner was therefore substituted with an order that the employee’s dismissal was fair. 


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