Workers warned about Covid legalities

LAW EXPERT Andre Visser has warned of the difficulty faced by both employers and employees to properly address the prevalence of Covid-19 within the workplace.

Visser was commenting on the case of a butcher at processed meat manufacturer Eskort, who went to work after testing positive for Covid-19 and even hugged a colleague who suffered from comorbidities.

The worker was eventually dismissed and the decision confirmed by the Labour Court

“I believe that the conclusion reached by the court in this instance was correct and justified, but each matter must be considered on its own merits, before a conclusion is reached,” said Visser, a partner at law firm DLA Pipe.

Visser said under the current Covid-19 era, employers had a high level of responsibility to ensure that employees were properly informed of what they may and may not do, when feeling sick.

He said it was important to have specific protocols in place.

These included questionnaires completed by employees as they arrived at the workplace or other similar measures to properly screen for individuals that may have symptoms, even though they had not tested positive.

The case between Stuurman Mogotsi and Eskort raised the topical issue surrounding the fairness of the dismissal of an employee on account of gross misconduct and related negligence, related to his failure to observe Covid-19-related health and safety protocols put in place at the workplace.

Labour Court judge Edwin Tlhotlhalemaje, in the opening to his judgment, remarked: “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 communities, in ensuring that employers, employees, and the general populace are sensitised to the realities of this pandemic, and to further reinforce the obligations of employers and employees in the face of an exposure to Covid-19.”

Mogotsi was found guilty of gross misconduct by his employer as he did not tell them he took a Covid-19 test and was waiting for his results.

He was also convicted and fired because after testing positive, he continued working and placed the lives of his colleagues at risk.

Mogotsi used to travel to and from work daily with a colleague, who tested positive for Covid-19 and was eventually admitted to hospital.

A few days later Mogotsi started to feel ill and his wife, a traditional healer, booked him off for a few days.

He then returned to work, although management told him to stay home. While waiting for his test results and even thereafter, he continued to work.

The employer said they had policies, procedures, rules and protocols in place, and all employees had been constantly reminded of these through various communications posted at points of entry, and also through emails.

The judge said Mogotsi had been aware that he had been in contact with someone with the symptoms and that he had later tested positive. He had thus recklessly endangered the lives of his co-workers.