More than a year after the start of the Covid-19 lockdown, many citizens have taken a lax approach to mask wearing, social distancing and disinfection.
However, a recent South Africa labor court ruling indicates that employers may, within reason, be able to fairly fire employees for failing to follow Covid-19 safety protocols, legal experts say. ENSafrica law firm.
Under the Disaster Management Act, subsection 70 (2) of the current Adjusted Alert Level 1 regulation provides that the wearing of a face mask is mandatory for anyone in a public place, except the exclusion of children under six years of age.
Despite this, a number of employers have tolerated anarchy, or rather the absence of masks, where employees are alone in their private offices, on the grounds that private offices are not “public places,” said ENSafrica.
“However, Regulation 70 (5) states that an employer may not allow any employee to perform duties or enter employment premises if the employee does not wear a face mask in the performance of his duties. functions.
“This regulation seems to suggest that employees should wear masks at all times while performing their duties, regardless of where the duties are performed.”
According to a strict interpretation of the regulation, this would include the case where an employee works remotely from his home. This is unlikely to be what the drafters of the regulation wanted, ENSafrica said.
However, the cabinet said failure to comply with these regulations would result in conviction, on conviction, of a fine or imprisonment not exceeding six months, or both a fine and a imprisonment.
“From a compliance perspective, and to avoid any possible adverse conclusions if an inspection is conducted, the safest approach for employers would be to have a workplace policy that complies with Regulation 70 (5 ) and make it compulsory to wear a mask in all areas. , closed or open, private or public, on the employer’s premises, ”he said.
ENSafrica recalled the recent judgment of Eskort Limited v Stuurman Mogotsi when the labor court concluded that the dismissal of an employee was fair, on the basis of:
- Serious misconduct related to his failure to disclose to the employer that he has passed a Covid-19 test; and
- Serious neglect in that even after receiving the positive results of his Covid-19 test, he failed to self-isolate and continued to report to work, putting the lives of his colleagues and their families at risk .
“In this case, the labor court sought to consider all the surrounding circumstances in their entirety before reaching a decision that the employee’s dismissal was fair,” ENSafrica said. He added that the following factors were taken into account:
- The employee’s role as a member of the Covid-19 awareness committee in the workplace;
- The employee’s negligence in failing to disclose the positive results of his Covid-19 test, thus putting the lives of colleagues and customers at risk;
- The employee’s conduct while walking around without a mask and hugging colleagues after testing positive;
- The employee’s nonchalant attitude.
So can you get fired?
In some cases, the the termination sanction may not be appropriate for mask-related transgressions – even if not wearing a mask is against national laws, ENSafrica said.
“For example, in circumstances where an employee hurriedly leaves their desk to pick up flyers and forgets to wear their mask and is seen and confronted by another employee three meters down the hall, but when confronted, the employee quickly apologizes and retrieves his mask and puts on it.
“In that case, the dismissal would probably be too severe and a verbal warning might be more appropriate or a simple reminder to be more vigilant.”
Employers whose disciplinary code prescribes the appropriate penalties for misconduct should be careful not to follow it blindly, the cabinet said.
“Dismissal does not automatically follow when the transgression amounts to a violation of the law. As with any other assessment of the appropriate sanction, factors such as the severity and impact of the transgression, as well as any remorse shown, should be taken into account.
“The seriousness of the transgression and the circumstances surrounding the Eskort case, however, most certainly justified the dismissal.
ENSafrica said employers and employees should be aware not to become jaded about Covid-19 compliance in the workplace.
“Employees need to understand that their non-compliance could have serious ramifications. However, taking into account the court’s warning to take Covid-19 compliance seriously, employers should also be aware of how they enforce compliance and impose disciplinary action for non-compliance.
“Employers should not rush to terminate the employment of violators and should ensure that the facts of the case justify a termination penalty.”
Commentary by Lauren Salt (executive) and Matlhatsi Ntlhoro (partner) of the law firm ENSafrica.
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