A question that has been circulating since the beginning of the pandemic is whether you can be dismissed for not complying with your workplace COVID-19 policies. In short, the answer is “yes”, as can be seen from the decision of the Labour Court in the case of Eskort Ltd v Mogotsi and Others (LC) (unreported case no JR1644/20, 28/3/2021).
The employee, in this case, Mogitsi, had been in close contact with a fellow employee who had later tested positive for COVID. Mogitsi himself then begun to show symptoms.
After being booked off work, he reported for duty near the end of his sick leave. He thereafter had a COVID test yet still returned to work after having been tested. Despite receiving a COVID-positive result a few days later, Mogotsi again reported for duty and personally went to the premises to hand in a copy of his results. To add to this, even after receiving his positive results, he was observed walking around the work premises without a mask and hugging a fellow employee.
Mogotsi was accordingly dismissed. He then referred the dispute to the CCMA, which found that his dismissal was substantively unfair. The employer’s disciplinary policy called for a final written warning in such cases and thus unjustified dismissal.
On review, the Labour Court overturned the decision of the CCMA and held that Mogotsi’s dismissal was, in fact, justified and fair. In overturning the CCMA’s decision, the Court reasoned at paragraph 16 that:
“Ultimately, irrespective of what the disciplinary code and procedure stipulates, in determining the appropriateness of a sanction of dismissal, the Commissioner is obliged to make an assessment of the nature of the misconduct in question, determine if whether, combined with other factors and the evidence led, the misconduct in question can be said to be of gross nature. Once that assessment is made, and the invariable conclusion to be reached is that the misconduct in question is of such gross nature as to negatively impact on a sustainable employment relationship, then the sanction of dismissal will be appropriate”.
The Court further stated that a disciplinary code and procedure is not prescriptive and is merely a guideline insofar as issues of sanctions are concerned.