Dismissal of an employee on account of gross misconduct and gross negligence, related to his failure to follow and/or observe COVID-19 related health and safety protocols put in place at the workplace held to be substantively fair
May 31, 2021
Eskort Limited v Stuurman Mogotsi & 2 Others
Labour Court of South Africa, Johannesburg
E Tlhotlhalemaje, J
March 28, 2021
Reported by Faith Wanjiku
Employment Law – dismissal – grounds for dismissal –gross misconduct and gross misconduct and gross negligence – where an employee who had tested positive for COVID-19 failed to observe the required COVID-19 guidelines in the workplace and to self-isolate thereby endangering himself, his colleagues and the workplace – whether the dismissal of an employee on account of gross misconduct and gross negligence, related to his failure to follow and/or observe COVID-19 related health and safety protocols put in place at the workplace was fair.
Arbitration – arbitral award – setting aside of an award on grounds of unreasonableness – where an arbitrator failed to apply his mind to the evidence placed before him leading to a disconnection the issue of the appropriateness of the sanction and the relief granted – whether an arbitral award could be set aside for unreasonableness where the arbitrator had failed to properly apply his mind to the evidence placed before him.
The case concerned the 1st respondent and his dismissal from work by the applicant for failure to self-isolate on testing positive for COVID-19. The applicant had COVID-19 policies, procedures, rules and protocols in place, and all employees had been constantly reminded of those through memorandum and other various means of communications posted at points of entry and also through emails. Of further significance however, was that the 1st respondent was also a member of the in-house Coronavirus Site Committee, and was responsible for inter alia, putting up posters throughout the workplace, informing all employees what to do and not to do in the event of exposure or even if they suspected that they could have been exposed to COVID-19, and the symptoms they had to look out for.
A day after he had received his positive COVID-19 results, the 1st respondent was observed on a video footage at the workplace, hugging a fellow employee who happened to have had a heart operation some five years earlier and had recently experienced post-surgery complications. He was also observed walking on the workshop without a mask. Upon his test results being known, and after further investigations and contact tracing, a number of employees who had contact with him had to be sent home to self-isolate, amongst them some who had other comorbidities.
The 1st respondent’s main contention was that he was aware of his colleague, Mr Philani Mchunu’s health condition and positive COVID-19 test results, as far back as July 20, 2020, and that he had informed management of his contact with him. He alleged that he was not given any clear directive as to what to do, but was instead, subjected to victimization when his medical certificates were questioned, and when he was informed of changes to his job description, and further given other tasks to perform. He had personally handed a copy of the results of his test to the store and acting managers in their offices, and was subsequently sent home. He came back on August 28, 2020 and was informed of the scheduled disciplinary enquiry.
The 2nd respondent in giving out the arbitral award stated that the applicant in the light of its own disciplinary code and procedure which called for a final written warning in such cases, failed to justify the sanction of dismissal, and had thus deviated from its own disciplinary code and procedure. It further stated that the sanction of dismissal was therefore not appropriate on account of that deviation, making the dismissal substantively unfair. To that end, the 1st respondent was to be reinstated retrospectively, without back-pay, and a final written warning placed on his record. The applicant thus approached the court for a review of the arbitral award stating thatthe (commissioner) 2nd respondent had failed to properly apply his mind to the evidence placed before him, and made findings that were not those of a reasonable decision maker.
- Whether the dismissal of an employee on account of gross misconduct and gross negligence, related to his failure to follow and/or observe COVID-19 related health and safety protocols put in place at the workplace was fair.
- Whether an arbitral award could be set aside for unreasonableness where the arbitrator had failed to properly apply his mind to the evidence placed before him.
- In determining the appropriateness of a sanction of dismissal, a commissioner of the Commission for Conciliation, Mediation and Arbitration (commissioner) was obliged to make an assessment of the nature of the misconduct in question, determine if whether, combined with other factors and the evidence led, the misconduct in question could be said to be of gross nature. Once that assessment was made, and the invariable conclusion to be reached was that the misconduct in question was of such gross nature as to negatively impact on a sustainable employment relationship, then the sanction of dismissal would be appropriate.
- In approaching the dismissal dispute impartially, a commissioner would take into account the totality of circumstances. He or she would necessarily take into account the importance of the rule that had been breached. The commissioner had to of course consider the reason the employer imposed the sanction of dismissal, as he or she had to take into account the basis of the employee’s challenge to the dismissal. There were other factors that would require consideration. For example, the harm caused by the employee’s conduct, whether additional training and instruction could result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record.
- The 1st respondent had at the very least, from July 20,2020, been aware that he had been in contact with his colleague, who had tested positive for COVID-19. On his own version, he had experienced known symptoms associated with COVID-19 as early as July 6, 2020. It could not therefore be probable for him to allege that he was not aware of the known symptoms, nor did he not know he had those symptoms. He had over that period until August 11, 2020, recklessly endangered not only the lives of his colleagues, and customers at the workplace, but also those of his close family members and other people he could have been in contact with.
- The 1st respondent’s conduct came about in circumstances where on the objective facts, and by virtue of being a member of the Coronavirus Site Committee, he knew what he ought to have done in an instance where he had been in contact with his co-worker and where on his own version, he had experienced symptoms he ought to have recognised. He nonetheless had continued to report for duty as if everything was normal, despite being told on no less than two occasions to stay at home in July 2020.
- The 1st respondent’s conduct was not only irresponsible and reckless, but was also inconsiderate and nonchalant in the extreme. He had ignored all health and safety warnings, advice, protocols, policies and procedures put in place at the workplace related to COVID-19, of which he was fairly aware of given his status not only as a manager but also part of the Coronavirus Site Committee. He had through his care-free conduct, placed everyone he had been in contact with whether at the workplace or at his residence at great risks. Even more perplexing was the reason he would go about the workplace mask-less and hugging fellow employees, in circumstances where he knew or ought to have known the consequences of his actions, especially after having become aware of his co-worker’s results.
- The 1st respondent could only come up with the now often used defence that he was victimised. At no point did he show any form of contrition for his conduct. At most, the evidence presented before the 2nd respondent pointed out to the 1st respondent as an employee who was not only grossly negligent and reckless, but also dishonest. He had failed to disclose his health condition over a period of time, sought to conceal the date upon which he had received his COVID-19 test results, and completely disregarded all existing health and safety protocols put in place not only for his own safety but also the safety of his co-employees, and the applicant’s customers. It followed that a dismissal was indeed an appropriate sanction.
- The 1st respondent’s care-free conduct also brought into question the seriousness with which the applicant and its own employees also attached to the dangers posed by the pandemic at the workplace, and whether the measures it had in place were adhered to, and effective in mitigating the effects of the pandemic. That was particularly so in circumstances where the colleague had reported ill since July 1, 2020, and particularly after July 20, 2020, when his positive COVID-19 test results were made known.
- Upon investigating the matter after the 1st respondent had tested positive, it was discovered that not only had he hugged a fellow employee who had comorbidities, but that he had also walked around the workplace without a mask. The questions that needed to be posed despite the applicant having all of these fancy COVID- 19 policies, procedures and protocols in place, were whether more than merely dismissing employees for failing to adhere to the basic health and safety protocols was sufficient in curbing the spread of the pandemic. It could not be that in the midst of the deadly pandemic, the applicant allowed mask-less ‘huggers’ walking around on the shop floor.
- Of further importance was notwithstanding all of those protocols and awareness campaigns about the pandemic, why any employee in the workplace, especially one with comorbidities, hug or reciprocate hugging in the middle of a pandemic. A basic principle such as social distancing had to mean something to someone at the workplace. There was responsibility of the applicant and its employees when other employees or even customers, were seen roaming the workplace or shop floor mask-less. Of even critical importance was the steps taken in ensuring the health and safety of all the employees and customers, where at least from July 20, 2020, the co-worker’s test results were known.
- The applicant had as per its evidence, taken disciplinary measures against other employees for violating the health and safety protocols put in place, including dismissals. However, the facts of the case clearly compelled the need for serious introspection by the applicant and all other employers in light of the above questions posed, in regard to whether existing health and safety measures and protocols in place were being taken seriously by everyone affected. It was one thing to have all the health and safety protocols in place and on paper. Those were however meaningless if no one, including employers, took them seriously.
- The egregious nature of the 1st respondent’s conduct, and its impact on both the applicant and its employees, the arbitration award of the 2nd respondent completely fell outside the bounds of reasonableness. It was in the light of all of those considerations that an order was made on the hearing date, that the dismissal of the 1st respondent was substantively fair.
Application allowed, arbitration award set aside.
Relevance to Kenya’s legal system
The Constitution of Kenya, 2010, provides in article 41 (1) that every person has the right to fair labour practices. Sub-article (2) provides further that every worker has the right to reasonable working conditions.
The Arbitration Act, No. 4 of 1995 provides in section 35 (2) that an arbitral award may be set aside by the High Court only if among others the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration or contains decisions on matters beyond the scope of the reference to arbitration, provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or the making of the award was induced or affected by fraud, bribery, undue influence or corruption or it’s against public policy.
The Employment Act, No.11 of 2007 provides in section 44 (41) matters that may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause. They include, among others:
(a)an employee knowingly fails, or refuses, to obey a lawful and proper command which it was within the scope of his duty to obey, issued by his employer or a person placed in authority over him by his employer;
Dismissal of an employee for failure to obey a lawful and proper command which it was within the scope of his duty to obey was also echoed in the case of Bernard Ndungu Mbugua v Nairobi Water and Sewerage Company Limited  eKLR.
In Kenya, an example of enforcement of employee adherence to Covid-19 health and safety protocols occurred in the case of the deputy governor of Kilifi County, Gideon Saburi. The deputy governor was forced into quarantine by the State after returning from Germany, around March 5, 2020. By then, Germany was battling the coronavirus pandemic, and Kenya had imposed a mandatory 14-day quarantine for anyone returning from abroad. The deputy governor ignored orders to self-isolate and instead attended several public functions. He was charged at a senior resident magistrate’s court for wilfully and unlawfully, without taking any precaution, exposing himself to the public while suffering from an infectious disease, namely COVID-19.He was later acquitted by a chief magistrate’s court as by then there was no law he could be charged under.
The Ministry of Health, later on, via a Gazette Notice, classified Covid-19 as a highly infectious respiratory disease, therefore any infected person who exposes himself to the public without taking proper precaution is guilty of an offence under the Public Health Act (PHA). One would be liable to a fine not exceeding thirty thousand shillings or to imprisonment for a term not exceeding three years or to both as provided in section 28 of the Public Health Act, Cap 242, Laws of Kenya.
Dismissal of an employee from the workplace on account of failure to observe the set health and safety protocols in the midst of the COVID-19 pandemic is thus an emerging area in the field of gross misconduct and negligence at the workplace. COVID-19 being a global pandemic has affected the whole world and the fact that workplaces are operational everywhere, it is paramount that employees and employers observe and obey the guidelines set so as to protect themselves, their families and workplaces from the adverse effects of the COVID-19.
The South African case is thus jurisprudential and critical in Kenya by acting as a guide at workplaces to both employers and employees who are needed to observe the COVID-19 protocols in their day to day duties and also self-isolation in cases where there are positive test results for the COVID-19 virus.