South Africa: Employer Fairly Dismissed Employee for Coming to Work COVID-19 Positive

May 21, 2021 | Johan Botes © Baker McKenzie

The Labor Court in South Africa recently expressed little sympathy for an employee who was dismissed for failing to adhere to COVID-19 protocols by coming into work knowing he had been exposed to the virus, thereby acting with little regard for the health and safety of colleagues and customers. The court also cautioned employers to be more robust in ensuring the health and safety of their staff.

Is it fair to dismiss an employee who came to work, knowing that he or she was exposed to COVID-19? Absolutely, said the Labor Court in a recent judgment (Eskort Limited v. Stuurman Mogotsi and others, case number JR1644/20). The court was not only critical of employees who act with scant regard for the health and safety of their colleagues and customers, but also cautioned employers to act more decisively in ensuring the health and safety of their staff.

The employee in question travelled to work every day by car with a colleague. His colleague fell ill, with the employee in question also experiencing symptoms associated with COVID-19. He was then booked off work due to this illness on two occasions. The employer advised the employee to stay at home, having been booked off for illness.

The employee, however, persisted in coming to work. He continued to do this even after it became known to him that his ride-sharing colleague had tested positive for COVID-19. In addition, after he received his own positive test results, he reported for duty in person to hand in his results. During the period when he underwent the test, but was awaiting the test results, he continued to attend the workplace and interact with other employees.

After receiving the result, he was seen walking around in the workplace without wearing a mask and hugging a colleague who had comorbidities. The employee in question was sent home and faced a disciplinary hearing upon returning to the office more than two weeks later.

The employer dismissed the employee for (i) failing to notify it that he suffered from COVID-19 symptoms, and (ii) neglecting to take appropriate steps after receiving his test results, including declining to self-isolate, continuing to attend work and not practicing social distancing at work. The employer's disenchantment with the employee was compounded by the fact that he was part of the employer's Coronavirus Site Committee and was responsible for putting up the posters to create awareness of do's and don'ts with respect to exposure. The employee claimed that he had informed the employer of his contact with his ill colleague but was not given clear direction about the steps he ought to have taken.

At the employment tribunal, the presiding commissioner found that the employee's conduct was "extremely irresponsible" and that he was "grossly negligent." The commissioner nonetheless awarded the employee reinstatement after finding that dismissal was not the appropriate remedy. The court on review was critical of the commissioner's handling of the matter. The court was clear that the employee's conduct negatively impacted on a sustainable employment relationship and thus dismissal was to be the appropriate sanction.

The judge added, "It is one thing to have all the health and safety policies in place and on paper. These are however meaningless if no one, including employers, takes them seriously." The court upheld the review application and held that the employee's dismissal was fair.

Employers may take a cue from this judgment to be more robust in managing employee conduct in the workplace where it impacts the health and safety of employees and customers. Employees who fail to adhere to COVID-19 protocols should expect little sympathy from employers, the employment tribunal or the court. Failing to believe in the impact of the virus is not likely to be a valid defense against dismissal for refusing to adhere to workplace protocols.