As we are amid the 3rd wave of the Covid-19 pandemic, many South Africans know that more stringent precautions are required to avoid the further spread of the Covid-19 virus. Even though the government has implemented a progressive rollout of the Covid-19 vaccination, much of the responsibility still rests with the public to mitigate Covid-19 related risks, particularly in our economic sector.

In the recent judgment of Eskort Limited v Mogotsi [2021] JR1644-20 (LC), the court had to determine whether the dismissal of an employee who had reported for duty despite him having tested positive for Covid-19, was fair. In this matter an accused employee of Eskort Limited had been charged and dismissed for reporting for duty despite having displayed symptoms relating to Covid-19; for failing to disclose the fact that he had gone for a Covid-19 test; for failing to subsequently disclose his test results where he was tested positive for Covid-19 and for still reporting for duty where he should have rather self-isolated.

The CCMA found that the sanction was too harsh, however, on review, The Labour Court confirmed that the employee was guilty of the charges against him because of his reckless behaviour and that he was fully aware of the company’s own Covid-19 protocols and procedures due to him forming part of the employer’s Corona Virus Site Committee. The Labour Court had found that even in the absence of a disciplinary code stipulating the appropriateness of a specific sanction, the commissioner was obliged to assess the nature and seriousness of the misconduct. The court noted that the behaviour of the employee was serious in that despite his condition, he was found working at his workstation without wearing a mask and was even found hugging a fellow employee.

The Labour Court had noted that the employee’s reckless and negligent actions posed a health and safety risk to his work environment and the public at large. The dismissal was found to be substantively fair. The Judgment sets the precedent requiring employers, employees and any other stakeholders to align themselves with Covid-19 legislation, regulations and best practice where reckless behaviour and a disregard for the rules, will not be tolerated.

Should you have any queries and matters that require advice please contact Linden our Employment Labour Specialist on 082 671 2171 or drop him an email at linden@erlc.africa