Whether the dismissal of an employee on account of gross misconduct and gross negligence, related to his failure to follow and/or observe COVID-19 related health and safety protocols put in place at the workplace was fair.The applicant thus approached the court for a review of the arbitral award stating thatthe (commissioner) 2 nd respondent had failed to properly apply his mind to the evidence placed before him, and made findings that were not those of a reasonable decision maker. To that end, the 1 st respondent was to be reinstated retrospectively, without back-pay, and a final written warning placed on his record. It further stated that the sanction of dismissal was therefore not appropriate on account of that deviation, making the dismissal substantively unfair.
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The 2 nd respondent in giving out the arbitral award stated that the applicant in the light of its own disciplinary code and procedure which called for a final written warning in such cases, failed to justify the sanction of dismissal, and had thus deviated from its own disciplinary code and procedure. He came back on Augand was informed of the scheduled disciplinary enquiry. He had personally handed a copy of the results of his test to the store and acting managers in their offices, and was subsequently sent home. He alleged that he was not given any clear directive as to what to do, but was instead, subjected to victimization when his medical certificates were questioned, and when he was informed of changes to his job description, and further given other tasks to perform. The 1 st respondent’s main contention was that he was aware of his colleague, Mr Philani Mchunu’s health condition and positive COVID-19 test results, as far back as July 20, 2020, and that he had informed management of his contact with him. Upon his test results being known, and after further investigations and contact tracing, a number of employees who had contact with him had to be sent home to self-isolate, amongst them some who had other comorbidities. He was also observed walking on the workshop without a mask.
Of further significance however, was that the 1 st respondent was also a member of the in-house Coronavirus Site Committee, and was responsible for inter alia, putting up posters throughout the workplace, informing all employees what to do and not to do in the event of exposure or even if they suspected that they could have been exposed to COVID-19, and the symptoms they had to look out for.Ī day after he had received his positive COVID-19 results, the 1 st respondent was observed on a video footage at the workplace, hugging a fellow employee who happened to have had a heart operation some five years earlier and had recently experienced post-surgery complications. The applicant had COVID-19 policies, procedures, rules and protocols in place, and all employees had been constantly reminded of those through memorandum and other various means of communications posted at points of entry and also through emails. The case concerned the 1 st respondent and his dismissal from work by the applicant for failure to self-isolate on testing positive for COVID-19.
Labour Court of South Africa, JohannesburgĮmployment Law – dismissal – grounds for dismissal –gross misconduct and gross misconduct and gross negligence – where an employee who had tested positive for COVID-19 failed to observe the required COVID-19 guidelines in the workplace and to self-isolate thereby endangering himself, his colleagues and the workplace – whether the dismissal of an employee on account of gross misconduct and gross negligence, related to his failure to follow and/or observe COVID-19 related health and safety protocols put in place at the workplace was fair.Īrbitration – arbitral award – setting aside of an award on grounds of unreasonableness – where an arbitrator failed to apply his mind to the evidence placed before him leading to a disconnectio n the issue of the appropriateness of the sanction and the relief granted – whether an arbitral award could be set aside for unreasonableness where the arbitrator had failed to properly apply his mind to the evidence placed before him. Eskort Limited v Stuurman Mogotsi & 2 Others
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