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The global Covid-19 pandemic has brought about unprecedented challenges for society at large, wreaking havoc in the “normal” way of life.  Businesses have had to adopt new processes, procedures and measures in their operations in order to stay viable and protect the wellbeing of their employees.

The workplace has been heavily regulated by Government, with stringent requirements placed on employers to ensure the health and safety of their employees and the general public. Employees have had to follow strict protocols in the workplace, with “Covid-19 procedures” forming a large part of the employment relationship over the past year.

The recent judgment of Eskort Limited v Mogotsi [2021] ZALCJHB 53, is one of the first indications of the Labour Court’s robust stance and dim view of employees who brazenly and unashamedly fail to follow Covid-19 protocols in the workplace.

Stuurman Mogotsi (“Mogotsi”) was employed as an Assistant Butchery Manager by Eskort Limited. He travelled to and from work with a colleague in a private vehicle. During July 2020, Mogotsi’s colleague fell ill and ultimately tested positive for Covid-19. Around the same time that Mogotsi’s colleague fell ill, Mogotsi himself started experiencing chest pains, headaches and coughs. Mogotsi consulted a traditional healer who booked Mogotsi off work. Nonetheless, Mogotsi reported for work even after learning of his colleague’s positive Covid-19 test result. On 5 August 2020, Mogotsi took a Covid-19 test and was informed, by SMS, on 9 August 2020 that he was indeed “Covid positive”. 

Nonetheless, Mogotsi reported for duty on 7, 9 and 10 August 2020, and personally came to the workplace to hand in a copy of his test results. To make matters more astounding, Mogotsi was a member of the in-house ‘Coronavirus Site Committee’ and was responsible for putting up posters throughout the workplace informing employees of what to and what not to do in the event of exposure, including suspected exposure, to Covid-19.

Further, Eskort’s own internal investigations revealed that Mogotsi, on 10 August 2020 (being the day after his confirmation of being Covid positive) was seen on CCTV footage hugging a fellow employee who happened to have had a heart operation some five years earlier and had recently experienced post-surgery complications. Mogotsi was also seen walking around the premises without a mask and interacting with other colleagues. As a result, a number of employees who had been in contact with him had to self-isolate, including his colleague with the post-surgery complications.

Mogotsi was dismissed on account on account of gross misconduct and gross negligence relating to his failure to follow and/or observe Covid-19 related health and safety protocols in the workplace.

Mogotsi challenged the fairness of his dismissal.  In arbitration proceedings, the Commissioner found the sanction of dismissal was too harsh and ordered that Mogotsi be retrospectively reinstated.

The Labour Court, per Tlhotlhalemaje J, found that the findings and conclusions of the Commissioner on the issue of the appropriateness of the sanction and relief were entirely disconnected from the evidence before him, and thus reviewable.

The Court held that Mogotsi’s conduct was ‘extremely irresponsible’ in the context of the pandemic, and that he was ‘grossly negligent’.  Mogotsi ignored all health and safety warnings, advice, protocols, policies and procedures in place at the workplace related to Covid-19, of which he must have been aware, given that he was a member of the ‘Coronavirus Site Committee’.

The Court went on to find that Mogotsi’s conduct was dire, not only for his employer, but for his colleagues and their families and that the only excuse, in the ‘midst of all the monumental harm he had caused’, was to come up with the ‘now often used defence that he was victimised’. The award reinstating Mogotsi was replaced with an order that the dismissal of Mogotsi was substantively fair.

Tlhotlhalemaje J concluded that the facts of this case compels ‘the need for serious introspection’ by the employer and its employees and whether health and safety measures and protocols in place are being taken seriously by everyone affected.

In paragraph 20, Tlhotlhalemaje J stated that “[It] is one thing to have all the health and safety protocols in place and on paper. These are however meaningless if no one, including employers, take them seriously”.

The Court’s robust stance should be a warning to employees of the potential consequences of failing to adhere to Covid-19 protocols, but also serve as a lesson to employers that more should be done to protect its employees in the midst of the pandemic.

Written by,

Melanie Hart and Bryan White.