Amalta Seevnarayan Dhanee | Attorney: Legal Services Division

 Since the onset of the Covid 19 pandemic in South Africa, all employers must adhere to the strict Covid 19 protocols, in line with government directives, to ensure the health and safety of their employees at the workplace against the Covid 19 virus. Equally employees are to ensure that they conduct themselves in a responsible manner by adhering to social distancing guidelines, wearing of face masks etc.

However, what happens in the event an employee calls for duty, despite knowing he has tested positive for Covid 19?  This question has been clearly answered in the recent Labour Court judgment, Eskort Limited v Stuurman Mogotsi and Others (JR1644/20) [2021] ZALCJHB 53; (2021) 42 ILJ 1201 (LC); [2021] 8 BLLR 811 (LC)

Case Summary

In the above-mentioned case, Mr. Mogotsi had started experiencing Covid 19 related symptoms in July 2020, he visited a traditional healer and was booked off work for 4 days.

His employers, Eskort Limited, directed he remain at home in isolation, however on 10 July 2020, Mr. Mogotsi returned to work. Thereafter he presented himself for a Covid 19 test and received a positive result on 10 August 2020. After receiving this result, he arrived at his workplace and notified his employer accordingly. He was asked to return home and isolate.

His employer had no knowledge that he had submitted himself for a test and continued to present himself at work whilst waiting for his results thus endangering the lives of his fellow colleagues.

This set of events resulted in Mr. Mogotsi being dismissed for acting negligently. He then referred this matter to the CCMA for relief. The Commissioner found that Mr. Mogostsi had been unfairly dismissed and ordered he be reinstated retrospectively without back pay.

Findings of the Labour Court

The Employer referred the matter to the Labour Court for review. The Labour Court stated that based on all evidence presented at the CCMA hearing, it was evident that Mr. Mogotsi acted negligently with total disregard for the health and safety of his colleagues. He interacted with fellow employees and failed to wear his face mask after knowing he had tested positive for Covid 19.

There was no excuse for the manner in which he conducted himself as he was well versed on all Covid 19 Protocol and internal procedures as he was a member of the Coronavirus Site Committee.

The Court 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, takes them seriously.”

Accordingly, the court ruled that Mr. Mogotsi had been fairly dismissed.

What does this mean? ? It means that all employers must take a firm approach in ensuring that employees are well versed on all internal processes and procedures as well as government Covid 19 protocols, and further that such protocols are being strictly adhered too. Employees who fail to adhere to same will find themselves out of work.