Substantive fairness is not out of the window yet!

Substantive and procedural fairness in COVID related dismissals.

In the review matter of Eskort Limited v Stuurman Mogotsi [2021] ZALCJHB 53, (JR1644/20) (2021) ZALCJHB the Labour Court, on 28 March 2021 determined the issue of fairness regarding the dismissal of an employee for gross misconduct and negligence, related to his failure to follow or observe COVID-19- Health and Safety protocols put in place at the workplace. The Labour Court held that an important consideration is, what the Commissioner decisively concluded, that the employee's conduct was "extremely irresponsible" in the context of the pandemic, and that he was therefore "grossly negligent". As is trite in our law, the circumstances of any case should be considered, as was confirmed in Sidumo v Rustenburg Platinum Mines Ltd (2008 (2) SA 24 (CC)) , where the Constitutional Court found that

"In approaching the dismissal dispute impartially, a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. ... [O]ther factors will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his/her long-service record. This is not an exhaustive list." (Sidumo case par 78)

To this end, the Labour Court held that the sanction of dismissal was appropriate. In the first place, the employee was aware that he had been in contact with another who had tested positive for COVID-19. On his own version, he had experienced known symptoms associated with COVID-19 and he had recklessly endangered not only the lives of his colleagues and customers at the workplace, but also those of his close family members and other people he may have been in contact with. Secondly, the employee's conduct came about in circumstances where, on the objective facts, and by virtue of being a member of the "Coronavirus Site Committee", he knew what he ought to do in an instance where he had been in contact with COVID positive persons, where on his own version, he had experienced symptoms he ought to have recognised. He nonetheless continued to report for duty as if everything was normal, despite being told on no less than two occasions to stay at home. Thirdly, the Labour Court held that the employee's conduct was not only irresponsible and reckless but was also inconsiderate and nonchalant in the extreme. He had ignored all health and safety warnings, advice, protocols, policies and procedures put in place at the workplace related to COVID-19, of which he was aware of, given his status not only as a manager, but also part of the "Coronavirus Site Committee".

According to the Labour Court, the evidence presented before the CCMA commissioner showed that the employee was not only grossly negligent and reckless, but also dishonest. He had failed to disclose his health condition over a period of time, sought to conceal the date upon which he had received his COVID-19 test results, and completely disregarded all existing health and safety protocols put in place not only for his own safety but also for the safety of his co-employees and the applicant's customers, and as such, the egregious nature of the employee's conduct was such that "a trust and working relationship between him, the employer and his fellow employees, cannot by all accounts be sustainable" 

The Labour Court found that the dismissal of the employee was procedurally and substantively fair.

The recent CCMA award for dismissal of an employee that poses a health risk under COVID regulations therefore does not come as a surprise, however that does not mean that employers can flout procedural or substantive fairness, just because it is a serious offence. In the matter of South African Commercial, Catering and Allied Workers Union obo Mokhari / Shoprite - (2022) 31 CCMA 7.1.10 also reported at [2022] 5 BALR 535 (CCMA), the employee was found to be fairly dismissed on substantive grounds as she breached the COVID health and safety protocols of the employer when she reported for duty after testing positive for Covid-19. The Commissioner found that even if she was unaware of the policy of the employer, she should have known that mixing with others posed a risk to their health. Although an employee at another branch might have received a warning for a similar offence, it did not outweigh the seriousness of her misconduct and the health risk she posed for others. However, although it is not in dispute that this is a serious offence and dismissible, procedural fairness is not out the window yet!. The employer revoked the finding against the employee and then dismissed her again, of which she was informed a week later. The Commissioner ruled that the employer violated the employee's right to a fair hearing as no disciplinary hearing had been held before the "second" dismissal took place. The employee was awarded two months' salary as compensation for procedural unfairness.

Johanette Rheeder - JR Attorneys Inc.