Eskort Limited // Stuurman Mogotsi and 2 others JR1644/20  ZALCJHB 53
While many South Africans may have become desensitised to the current COVID-19 pandemic, the legislation implemented to protect employees within the working environment is still very much in force and must at all times be adhered to by employers and employees.
The abovementioned judgment demonstrates this within the context of South Africa’s employment law.
The Respondent (“Stuurman”) was employed by the Applicant (“Eskort”) as an Assistant Butchery Manager during 2018.
During 2020 Stuurman was instructed to be a member of Eskorts’ Coronavirus Site Committee. Stuurman was responsible for, inter alia, informing employees of the “dos” and “don’ts” in the event a co-worker was exposed to, or suspected they had contracted, COVID-19. As part thereof, Stuurman inform the employees of COVID-19 symptoms of which they should be cognisant.
Stuurman travelled to work with a co-worker, Philani Mchunu (“Mchunu”). Subsequently Mchunu contracted COVID-19 and was informed on 20 July 2020 that he had tested positive for COVID-19. Stuurman also felt ill at the same time and was booked off from work on 6 and 7 July 2020 and then again on 9 and 10 July 2020. Eskort instructed Stuurman to stay at home but he came to work after 10 July 2020. At this time Stuurman had not tested for COVID-19 but was aware his co-worker had tested positive on 20 July 2020.
Only on 5 August 2020 did Stuurman undergo a COVID-19 test and on 9 August 2020 he was informed he had tested positive. Stuurman reported for duty, at Eskort’s premises, on 7, 9 and 10 August 2020 during which he handed in copies of his positive COVID-19 test to Eskort. While at the workplace, Stuurman had proceeded to hug co-workers and walked around amongst them without a mask.
Upon investigation by Eskort, it was discovered that Stuurman had acted against company policies through his abovementioned actions. Stuurman was called to a disciplinary hearing and dismissed for allegations relating to misconduct.
Commission for Conciliation, Mediation and Arbitration
Stuurman referred a dispute to the CCMA claiming his dismissal was unfair based on, inter alia, (a) he had made Eskort aware of his interaction with Mchunu, who had previously tested positive for COVID-19, (b) he had not been given any clear directive from Eskort as to what to do when he tested positive and (c) Eskort had victimised him by questioning his medical certificates. For good measure Stuurman claimed the victimisation involved a change in his job description and further tasks he was asked to perform. It was however noted that Eskort had asked Stuurman to stay at home after he tested positive, but Stuurman continued to attend at the workplace.
During cross-examination Stuurman conceded (a) he had received his positive test results on 9 August 2020, (b) had hugged a co-worker with a known comorbidity and (c) walked in the workplace amongst co-workers without a mask. Stuurman claimed he was not aware he had to self-isolate.
Eskort confirmed that while it did not have any rules which compelled employees to inform it when they had undergone a COVID-19 test, there were rules in place compelling employees to inform it if they suspected they had been infected, thereby implying that if the employee was COVID-19 positive they should notify Eskort. Stuurman knew Mchunu was COVID-19 positive and had been exposed to Mchunu, therefore he was obliged to inform Eskort of same.
The CCMA awarded Stuurman retrospective reinstatement, without backpay, ruling that his dismissal was substantively unfair. In the arbitration award the commissioner stated he had regard for the provisions of the LRA, CCMA Guidelines, the Code of Good Practice and relevant case law when coming to his conclusion that the dismissal was substantively unfair.
Eskort, unhappy with the CCMA award, took the matter on review to the Labour Court (“LC”) alleging the commissioner failed to apply his mind to the evidence placed before him and made findings that were not those of a reasonable decision maker.
The LC held the commissioner findings and conclusions were in fact inappropriate and disconnected with the evidence lead, thereby making the award reviewable. The LC also took a dim view of the commissioner succumbing to Stuurman’s claims of alleged victimisation. LC held that Stuurman’s actions were extremely irresponsible, and in the context of the pandemic, he was grossly negligent. While the matter was unopposed, Stuurman had submitted that he wanted to be re-instated.
Throughout the judgment the honourable judge Tlhotlhalemaje makes it clear that he is extremely unimpressed by the commissioners reasoning, award and Stuurman’s actions.
In conclusion, the LC held that (1) the commissioner had failed to take into account the totality of the circumstances when considering the appropriateness of the sanction of dismissal; (2) Stuurman had reasonably known what was required as the Coronavirus Site Committee member; (3) Stuurman had also known he was positive and risked the health and safety of his co-workers thereby truly irreparably breaking the trust relationship between himself, Eskort and his co-workers. It was found that Stuurman’s conduct was irresponsible and reckless as it had far reaching consequences for his employer, co-workers and their families.
The LC finally held that the dismissal was substantively fair, set aside the arbitration award and substituted it with an order confirming the dismissal substantively fair.
It is clear that this judgment places an obligation on all parties (employers and employees) to be responsible within the workplace and balance the interests of the individual, the company and co-workers against current COVID-19 workplace health and safety protocols. In essence, if you may have been exposed, or are in fact COVID-19 positive, you have a duty to protect yourself and those around you from risk of infection within the work environment.