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Locked Down At Home But Not Out Of The Workplace – A Case On An Employee’s Refusal To Return To Work During The Lockdown

In the CCMA decision of Botha v TVR Distribution [2020] 12 BALR 1282 (CCMA), the issue centred around the dismissal of an employee for gross insubordination and insolence, as the employee refused to return to work during the Level 5 Lockdown.

Botha’s claims as to why he could not return to the office included not being given personal protective equipment or a permit to work, and that the Level 5 restrictions did not permit him to work and he thus refused to break the law.

These reasons were found to be false since security measures had been taken, and Botha would be able to travel as the company had obtained the necessary Companies and Intellectual Property Commission (CIPC) certificate to operate as an essential service.

The Commissioner found that Botha’s dismissal was substantively fair because he was insolent and had failed to obey a lawful and reasonable instruction, and was therefore insubordinate.

The Commissioner stated in the decision that:

“Employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority.”

Therefore, if lawful and reasonable instructions are given to an employee, they are required to adhere to them, notwithstanding the times we find ourselves in with the pandemic and lockdowns. Disregarding or failing to adhere to such lawful and reasonable instructions could lead to an employee’s fair dismissal.

We reiterate that even when dismissing an employee in situations like this, procedural fairness must too be combined with substantive fairness, otherwise employers will be penalised with a compensation order being made against them.

If you have any questions about other Labour or Land issues, contact McCarthy & Associates Attorneys on (033) 266 6170 or  ad***@ma****.za.