Covid regulations not a joke

THE Covid-19 pandemic is not a joke. At the time of writing, in South Africa alone there were almost 1.6 million positive cases identified and close to 54 000 deaths in just over a year.

There have been more than 3 million deaths globally. Despite the health and economic devastation caused by the pandemic, some people don’t seem to care.

Recently the Labour Court had to consider one such case in the judgment of Eskort Limited v Stuurman Mogotsi who was an assistant butchery manager. He was also a member of the in-house “Coronavirus Site Committee” at work.

The committee is instrumental in, among other things, informing employees about the risks of Covid-19, what symptoms to look out for and what to do in the event of exposure.

Mogotsi used to travel to and from work with a colleague. On July 1 last year the colleague felt unwell and consulted his doctor. He was booked off from work until July 4 and admitted to hospital on July 6. On July 20, he was informed that he had tested positive for Covid-19.

Mogotsi started experiencing chest pains, headaches and coughs. He consulted a traditional healer, who booked him off sick on July 6 and 7, and again from July 9 to 10. The traditional healer happened to be his wife. Despite his employer advising him to stay at home, Mogotsi reported to work after July 10. He continued to go to work even after he became aware of the fact that his colleague had tested positive on July 20.

On August 5, Mogotsi decided to take a Covid-19 test. He did not inform his employer and he continued going to work. He was informed on August 9 that he had tested positive.

Notwithstanding the results, Mogotsi still went to work on August 9 and 10.

While at work, he disregarded the employer’s physical distancing protocols, and often did not wear a mask. To make matters worse, on the day after he had received his result, Mogotsi was seen hugging a fellow employee who happened to have had a heart operation five years earlier and had recently experienced post-surgery complications. On August 10, when he personally handed the results of his Covid-19 test to his employer, he was sent home to self-isolate.

Quite correctly, the employer instituted disciplinary proceedings against Mogotsi when he returned to work. He was dismissed for gross misconduct (for failing to disclose to his employer that he had taken a Covid-19 test) and for gross negligence (in that after receiving his results, he failed to self-isolate, continued working and put the lives of his colleagues at risk).

Mogotsi referred a dispute to the CCMA. He alleged that he was victimised and questioned about his sick notes.

The CCMA commissioner made short shrift of the victimisation argument and found Mogotsi guilty of the allegations against him. However, the commissioner found that the sanction of dismissal was inappropriate, as the employer’s disciplinary code suggested only a final written warning for this type of dismissal.

He reinstated Mogotsi, albeit without backpay and with a final written warning.

The employer, with good reason, instituted review proceedings in the Labour Court.

The court found that the commissioner had concluded that Mogotsi’s conduct was “extremely irresponsible in the context of the pandemic”. That should have been the end of the matter. The court was critical of commissioners who paid lip-service to the provisions of the Labour Relations Act and the Code of Good Practice. The court found that Mogotsi’s carefree attitude was incomprehensible. The consequences of his conduct were not only dire for his employer, but equally so for his colleagues, their families and the community.

Mogotsi was not only grossly negligent and reckless, but he also disregarded all workplace health and safety protocols.