Is a violation of Covid-19 regulations ground for dismissal?

Compliance with Covid-19 safety guidelines in the workplace remains a contentious issue, and the most recent labour court judgement against an employee dismissed for negligence in complying with Covid-19 regulations exacerbated the debate

Whether or not it is reasonable to dismiss an employee for breaching Covid-19 regulations is still debatable, and Prof Itumeleng Tshoose, a law professor at the University of Limpopo, examined the parameters under which an employer can discipline an employee for flouting Covid-19 safety protocols and regulations.

Prof Tshoose’s paper, titled “Dismissal arising from flouting COVID-19 health and safety protocols”, looks at the extent to which the employer can take appropriate action against an employee who willfully refuses to obey the lawful and reasonable instructions of the employer during Covid-19 times. Using a case study of an Assistant Butchery Manager at Eskort Limited, where an employee was charged with gross misconduct related to his alleged failure to disclose to the employer that he had taken a Covid-19 test on 5 August 2020 and was awaiting his results. Secondly, gross negligence, in that after receiving his Covid-19 test results (which were positive), he had failed to self-isolate, had continued working from 7 to 10 August 2020, and had consequently placed the lives of his colleagues at risk. It was further alleged that in the period during which he had reported for duty, he failed to follow the health and safety protocols at the workplace, including adherence to social distancing.

According to the paper, despite the employer having Covid-19 policies, procedures, rules, and protocols in place and having been a recipient of various emails, along with other employees, that served as a constant reminder for them to take Covid-19 safety precautions, the employee failed to uphold the regulations.

Even so, the employee was a member of the in-house “Coronavirus Site Committee” and was in charge of informing all employees about their responsibilities if they suspected they had been exposed to Covid-19, among other things. Nonetheless, Prof Tshoose’s paper stated that after the company conducted its investigations, the employee was seen on video hugging a fellow employee a day after receiving his results without a mask.

According to Prof Tshoose’s paper, “in cases where the employee has flouted Covid-19 regulations – for example, where an employee openly attends mass/social gatherings and posts about it on their social media, posting the name of his/her employer, and continues to attend the office as normal, has the potential not only to endanger the health and safety of employees who share a workspace but also to damage the employer’s reputation.”

He further notes that in this situation, the employer would be justified in taking disciplinary action against such an employee. Indeed, the Labour Judgment in Eskort Limited demonstrated that in such cases, an employee’s dismissal is justified.

The Labour Court ruled that dismissal was appropriate because the employee was aware that he had come into contact with someone who tested positive for Covid-19. Because the employee had experienced symptoms on his own, he recklessly endangered the lives of colleagues and clients at the workplace.

As a member of the Coronavirus Committee, the employee is well aware of the steps to take in the event of exposure, and in this case, the member still reported for duty as if everything was normal. Prof Tshoose observes that the behaviour was not only irresponsible and reckless but also inconsiderate and nonchalant in the extreme (Eskort Limited supra par 17.3).

The paper concludes and recommends that, following the Labour Court’s ruling on Eskort Limited, it is clear that if an employer issues a lawful and reasonable instruction to its employees, even amid a pandemic, as per the702 OBITER 2021, the employee is obliged to comply and may face dismissal for failure to comply (Botha v TVR Distribution (2020) 12 BALR 1282 (CCMA)).

“The Labour Court judgment advances the need for more to be done at both the workplace and in our communities in ensuring that employers, employees, and communities be sensitised to the realities of Covid-19, and to further reinforce the obligations of employers and employees in the face of, or in the event of exposure to, this pandemic,” Prof Tshoose highlights.

Prof Tshoose is a law professor in the Department of Mercantile and Labour Law at the University of Limpopo. Full article: Tshoose CI “Dismissal arising from flouting COVID-19 Health and Safety Protocols- Eskort Limited v Stuurman Mogotsi & Others 2021” vol. 42(3) 2021 OBITER 692-702.

By Evans.Khalo@ul.ac.za