• Edward de Klerk

Labour Court vindicates the need for safe workplaces


"Employee dismissed as behaviour whilst knowing he was COVID-19 positive serious offence." - Khwezi Makhathini


In Eskort vs Mogotsi and CCMA, the Johannesburg Labour court has held that the employer’s decision to dismiss Mr Mogotsi was the correct one for his gross misconduct and gross negligence in his failure to disclose he had taken a COVID-19 test and was awaiting results and not following the health guidelines set at the workplace.


Background


Eskort applied for a review of a CCMA decision. Mr Mogotsi worked as an assistant Butchery Manager Judge Tlhotlhalemaje of the court heard considered that Mogotsi who travelled to and from work with a colleague had fallen ill soon after his colleague’s positive test and had known he had been admitted and known of his colleague’s positive COVID test results.


Instead of seeking medical attention, Mr Mogotsi sought to consult a traditional healer who happened to be his wife. He was subsequently booked off work on the 6th and 7th of July and then again on the 9th and 10th of July 2020. Upon being booked off by the traditional healer management, he still reported for work after the 10th of July, this was after he became aware from 20 July of his colleague’s positive results.


Mogotsi took a COVID-19 Test on 5 August 2020 and on 9 August 2020 was advised ‘SMS’ that he had tested positive. This, along with the fact that Mogotsi had tested positive, he had reported for work on the 7th, 9th, and 10th of August. And personally, came to the premises to hand in a copy of his results.


The employer had COVID-19 policies, procedures, rules and protocols in place, and all employees had been constantly reminded of these through memos and other communications posted at points of entry and through emails.

What is also of significance, is that Mogotsi was also a member of the in-house ‘Coronavirus Site Committee’, was responsible amongst other things for putting up posters throughout the workplace, informing all employees what and what not to do in the event of exposure or even if they suspected they may have been exposed to COVID-19.


The judge further noted “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 our 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, or event of an exposure to COVID- 19”.


The evidence in the against mounted further as he was seen in video footage at the plant hugging a fellow employee with a medical condition, he is also seen walking the workshop without a mask.


Under cross-examination, Mogotsi does concede that he did not know he needed to self-isolate. He further conceded that he hugged a fellow employee. For removing his mask of his contention, he contends that he was on the phone and could not be heard clearly.


Where the CCMA comes in


With the evidence provided, the CCMA commissioner decided that the dismissal was substantively unfair, a decision which was challenged in brings us to this question, how did the CCMA commissioner come to such a decision?


The applicant, Eskort, attacked the Commissioner’s award on multiple fronts including that he failed to apply his mind to the evidence placed before him, and made find findings that are not of a reasonable decision-maker.


The judge contended that the fact Commissioner had concluded that Mogotsi’s conduct was “extremely irresponsible” in the context of a pandemic his behaviour and that he was, therefore ‘grossly negligent. That conclusion on its own given the facts if this case ought to have been the end of the matter, and the dismissal ought to have been confirmed.


The judge further noted “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 our 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, or event of an exposure to COVID- 19”.


To access the full judgement, visit: http://www.saflii.info/za/cases/ZALCJHB/2021/53.html

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