Vinnie Rapa Raps at it agiiiiiaaain!

Covid-19 protocols as workplace rules of conduct and whether it is

appropriate for an employer to dismiss an employee who fails to abide by
these policies.

In the wake of the Covid-19 pandemic back in the last quarter of 2019, a lot has
changed in our day to day lives. This change has affected many aspects of our lives,
including the workplace. We saw a shift in how people interact with each other in
hopes of reducing the spread of the deadly virus, but most importantly we saw how
protocols were put in place by governments to aid people in minimizing their chances
of falling victim to the pandemic and how those protocols impacted the labour
industry. Many companies had to introduce protocols that were to be adhered to by
each employee and this has raised many issues in several workplaces. Employees
have been dismissed based on their failure to follow a particular covid 19 policy and
this has raised questions on whether it is necessary to dismiss employees that fail to
comply with the Covid-19 protocols.

The Merriam Webster dictionary simply defines dismissal as the removal from a
position or service. But it further elaborates to define it as the termination of an action
or claim usually before the presentation of evidence by the defendant. (Merriam
Webster). In legal terms, dismissal has no definitive/certain definition. That is why in
statutory terms, it is has several elements enlisted by section 186[1] of the LRA,
these elements are namely, Termination of the employment by the employer with or
without notice, Refusal or failure for an employer to renew a fixed contract, refusal to
allow an employee to resume work after maternity leave, constructive dismissal,
selective re-employment and the transfer of business. All these elements may
constitute to unfair dismissal. But our primarily focus will be on whether employees
can dismiss employees that do not abide by the Covid-19 protocols, and if so, is the
dismissal unfair or not? To answer this question, we need to look at what leads to
dismissal based on the failure to follow the said protocols. For instance, the
negligence of not wearing a face mask in public spaces is one of the widely known
policies of combating Covid-19. And there’s been a number of cases where people
were persecuted for not following this protocol.

In case law, we see such an issue in the NUMSA obo Manyike v Wenzane
Consulting & Construction [2021] 5 BALR 479 (MEIBC) case that involved Numsa
obo Manyike (an employee) who was dismissed by the employer (Wenzane
Consulting and Construction) for being found talking to the employer’s security on
the phone with his face mask pulled below his chin and not covering his mouth as it
was supposed to be. In his defence, the employee maintained that he pulled his
mask down to speak on the phone because the person on the other end couldn’t
hear him clearly with the mask covering his mouth. However, upon examination of
the situation, the Commissioner agreed that not wearing a mask during the covid-19
pandemic could bring about the element of risky behaviour, but he also found the
confusion surrounding the fact that workers were ought to always wear masks in the
workplace and called for proper education surrounding the matter to ensue. Sure,
the employee failed to comply by the Covid-19 rule, yes it was an act of negligence
on his part, but the Commissioner argued that the outright dismissal by the employer
was far too harsh and that a sanction short of dismissal such as a short period
without pay to the employee would have been more appropriate. The employee was
later reinstated from the date of the conclusion by the commissioner. (NUMSA obo
Manyike v Wenzane Consulting & Construction , 2021).

Similarly, a case where failure to abide by a Covid-19 protocol that led to dismissal
was brought up in the Mothapo v Alliance International Medical Services (CCMA
case no. GATW684-21 where the employee, a team leader, was dismissed for
negligence as she did not wear her mask despite it being a rule in the workplace and
that she was not feeling well at the time of the incidence which after testing, was
found Covid-19 positive. The grounds for dismissal were that she posed a great
danger to other employees, and this was a case of gross negligence. However, she
saw the dismissal unfair as she has taken full responsibility of not wearing her mask
when called upon for disciplinary hearing and had also pleaded guilty to the offence.
The Commissioner took these points into consideration and ruled that the dismissal
by the employer was too harsh, and that she be compensated with salary worth 6
months. Upon ruling that, he also noted that the employer was in the wrong by
suspending the employee while she was self-isolating. (Mothapo v Alliance
International Medical Services, 2021)

Another important case regarding the Covid-19 protocols in the workplace arises
from the CCMA’s decision in Ngcobo v East Coast Board (Pty) Ltd, (CCMA case no.
KNDB3595-21. The dispute in this case was a bit similar to the NUMSA obo Manyike
v Wenzane Consulting & Construction [2021] 5 BALR 479 (MEIBC) where the
employee failed to adhere to the rule of wearing a mask in the workplace. In Ngcobo
v East Coast Board, after the employee was dismissed, he argued that the dismissal
was inappropriate because the level of regulations at the time had been lowered and
he had witnessed customers entering a store without masks on and had thought it
was not a compulsory requirement anymore. The Commissioner however upheld the
decision of dismissal because the employee had received a final warning before the
dismissal, so he knew he was in the wrong. Also, his actions went against the
company policies of safeguarding fellow employees because his gross negligence
was putting others at risk even after being well aware of the warning. (Ngcobo v East
Coast Board (Pty) Ltd, , 2021)

Finally, in the case of Eskort Ltd v Mogotsi and Others. The respondent, Mogotsi had
failed to abide by the Covid-19 protocols and was dismissed for gross negligence
and misconduct. He did not inform his employer that he had taken a Covid-19 test
and was awaiting results. On top of that, he had failed to isolate himself from others
upon receiving his test results as the protocols required. These were not the only
misconducts Mogotsi had practiced. He was also seen on CCTV camera hugging
another employee who had undergone heart surgery just 5 years ago, this act was
incredibly risky as the other employee did not have the best health to risk contracting
the virus. Furthermore, Mogotsi was also seen walking into the employer’s workshop
without a mask covering his mouth.

Upon arriving at his decision regarding the matter, Judge Tlhotlhalemaje considered
the extensive evidence provided by the employer in support of his decision to
dismiss the employee and saw how the outrageous negligence of Mogotsi put
everyone including the employer in the workplace at risk and ruled that the dismissal
was substantively fair and appropriate. (Eskort Ltd v Mogotsi and Others. , 2021)
In a nutshell, whether it is fair for employers to dismiss employees for failure to
adhere to Covid-19 regulations depends on the nature of the incidence or whether it
can be aligned with one of the elements of unfair dismissal. We see that if an
employer unfairly dismisses an employee who doesn’t comply with the Covid-19
restrictions, he/she may face financial exposure in trying to compensate the
employees. However, the Labour courts does not also hesitate to give arbitration
awards to employers in light of employees willingly disregarding the Covid-19
protocols and we saw in how the Judge handled the case of Mogotsi and his
employer. All in all, there must be clear evidence that an employee negligently failed
to respect the workplace Covid-19 protocols for a dismissal to be fair and
appropriate.

Aurevouir mona mi!! (Some French nyana for you my friend)

References
Eskort Ltd v Mogotsi and Others. , 1201 (Labour Court March 28, 2021).

Merriam Webster. (n.d.). Dismissal. Retrieved from Merriam Webster: https://www.merriam-

webster.com/dictionary/dismissal

Mothapo v Alliance International Medical Services, GATW684 (CCMA 2021).

Ngcobo v East Coast Board (Pty) Ltd, , KNDB3595 (CCMA 2021).

NUMSA obo Manyike v Wenzane Consulting & Construction , 479 (MEIBC 2021).