Fired for going to work with Covid-19: What employers and workers should know

• The Labour Court recently upheld the dismissal of an employee who went to work while he knew he had Covid-19.
• The case raises the question of what employers - and employees - can and should do in the workplace, which has been made more complex due to the pandemic.
• Furthermore, an employment lawyer challenges the notion that conduct at work follows the principle of "everything has to be in writing".

A recent precedent-setting Labour Court case where an employee was fired for going to work just after he tested positive for Covid-19, highlights how the pandemic has added to the complexity of the workplace.

Disaster Management Act renders an employer potentially liable if anybody at the workplace contracts Covid-19, particularly if negligence is involved.

The case raises the question of what employers - and employees - can and should do if they face a similar situation at work where gross misconduct or gross negligence is found to have taken place.

The Labour Court in Johannesburg recently upheld the dismissal by national meat company Eskort of an assistant butcher, who knew he had tested positive for Covid-19 but kept going to work. The court found he put the lives of his colleagues at risk by ignoring various health and safety protocols and procedures. The employee was also a member of the company's in-house coronavirus site committee. 

The Commission for Conciliation, Mediation and Arbitration (CCMA) had earlier reinstated the employee, finding he should rather have received a written warning in line with the company's disciplinary code. The Labour Court, however, regarded the disciplinary code just as a guideline.

The employee claimed he was not given clear directives by the employer on what to do in a case like this. 

Kim Heres, a director of labour consulting firm CHA Group, says it is crucial that employers communicate clearly with staff about what they must report. 

"Employers should update their disciplinary code to include specific Covid-19 transgressions in the workplace. If any staff member of your business does step out of line and you need to take disciplinary action, be sure to keep a full paper trail of every decision that has been made around this process," she suggests.

"This is especially important if an employee challenges the dismissal with the CCMA. The onus is on the business owner to provide evidence that shows that any dismissal made is fair and within reason."

To employees her message is that they can take steps if their employer does not comply with Covid-19 protocols, like ensuring the wearing of masks and sanitising. If an employer allows customers to enter the premises without following Covid-19 protocols, for example, that puts the employees at risk. An employer can also potentially be held liable vicariously for the conduct of an employee. 

Decriminalise

Employment law expert Aadil Patel of Cliffe Dekker Hofmeyr says employment law must be simple and the process "decriminalised". He would also like to see an end to what to him is a "fixation" with having things in writing.

"In the Eskort-case the employee who was fired placed other people's lives in danger. I don't need you to tell me in a written policy it is wrong to go to work when I know I tested positive for Covid-19 and to go and hug fellow employees. In the same way, I don't need for you to put it in writing to me that it is wrong to steal," he explains.

For him, the behaviour of the employee towards other employees when he knew he had Covid-19 was totally blatantly and patently wrong.

"Information about the Covid-19 pandemic and safety protocols are everywhere. Certain things are so blatant that you do not need for an employer to tell you not to do it. Where the conduct of an employee is so blatant that it endangers others' lives, given the widely known knowledge of having to wear masks and other safety protocols, employers need not in addition explicitly tell employees. Employees should know better," he says.

"We need to get rid of this notion that SA labour law is so restrictive that it is not good for business. Yes, if you want to dismiss an employee you must go through a process, but how it happens need not be a crime to go to court for. Just ask for representations."

For Patel the Eskort case raises the issue that employers need to think about what a return to work or a hybrid model would involve, given the inherent dangers of SA potentially going into a third, and maybe later even fourth coronavirus wave.

"Employers should start to consider the fact that people are social by nature and will falter. So, is coming to work the right thing at this stage of the pandemic?" he asks.

Go to the Fin24 front page.