Rightful dismissal of employee who continued going to work knowing he had Covid-19

The employee in question was dismissed from his place of work on two grounds, the first in respect of Gross Misconduct in that he failed to disclose that he had undergone a Covid-19 test, and the second in respect of Gross Negligence in that he had put the lives of his colleagues at risk by reporting for duty after he had tested positive for coronavirus.

The employee referred the matter to the CCMA alleging unfair dismissal. The presiding Commissioner held that whilst the employee had acted in an ‘extremely irresponsible’ manner, the employer had deviated from its own disciplinary code and procedure which carried a sanction of a final written warning for the mentioned infractions. The Commissioner accordingly issued a reinstatement order.

The employer took the matter under review and referred the matter to the Labour Court. In reviewing the matter, the presiding judge, Judge Edwin Tlhotlhalemaje, found that the Commissioner’s findings were ‘entirely disconnected from the evidence’ and that the employer’s disciplinary code was ‘merely a guideline’.

The employer had submitted evidence in the form of CCTV footage which showed the employee hugging a fellow employee the day after he had tested positive for Covid-19. The fellow employee had a heart condition. The employee was also seen walking around the employer’s premises without a face mask.

Judge Tlhotlhalemaje found that the employee had ignored all health and safety warnings, advice, protocols, policies and procedures. Furthermore, he had defied Covid-19 regulations by going to his place of work knowing full well that he had recently tested positive for coronavirus. The Judge said that not only were the actions of the employee ‘irresponsible and reckless’ they were ‘inconsiderate and nonchalant in the extreme - through his care-free conduct, he placed everyone he came into contact with at great risk’.

‘The facts of this case are, indeed, extraordinary. They are indicative of the need for more to be done at both the workplace and in our communities, ensuring that employers, employees and the general populace are sensitized to the realities of the pandemic; and to further reinforce the obligations of both employers and employees in the face of it’ said Judge Tlhothalemaje.

He went on to say, ‘It is one thing to have all the health and safety protocols in place and on paper in the workplace. These are, however, meaningless if no one, including employers and employees, take them seriously’.

The Labour Court accordingly overturned the CCMA’s decision to reinstate the employee and upheld the employers decision to dismiss the employee.

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