It is overall accepted that the Occupational Health and Safety Act 85 of 1993 (OHSA) requires an employer to provide and maintain, as far as is reasonably practicable, a working environment that is both safe and without risks to the health of workers. The employer is also obliged to take reasonable and practical action to eliminate or mitigate any such risk. However, this becomes a bit trickier in the context of this Covid-19 pandemic.
It is currently still mandatory to wear a facemask in public. This begs the question as to which reasonable steps an employer should take to enforce these protocols, and can an employer dismiss an employee that fails to do this.
Section 14 of the OHSA calls out the reciprocal duties of an employee towards their employer by providing that every employee must take reasonable care of their own health and safety and that of other persons who may be affected by their acts or omissions. Considering this, it is easy to argue that the employee should adhere to the general health and safety protocols, and can be held accountable for failing to do. Even more so in a pandemic where such failure could potentially lead to a loss of life.
In the context of PPE (personal protective equipment), covering one’s nose and mouth with a mask is a requirement when entering the workplace or any public place. The Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Consolidated Direction) issued in terms of the Disaster Management Act 57 of 2002 mandates the wearing of masks in the workplace, while the adjusted alert level regulations make it compulsory to wear a mask in any public place.
In order to answer the question on whether an employer can dismiss an employee for a failure to abide by the rule that mandatory masks must be worn in the workplace, it would be best to reflect on the recent case-laws:
In the Labour Court case of Eskort Ltd v Mogotsi and Others (2021) 42 ILJ 1201 (LC) (28 March 2021), an employee, who had tested positive for the Covid-19 virus, and still failed to abide by the requirements of the alert level regulations, had been dismissed. The Labour Court found that such action is seen as both gross misconduct and negligence which warrant dismissal.
In the CCMA case of NUMSA obo Manyike v Wenzane Consulting and Construction [2021] 5 BALR 479 (MEIBC) and employee had been dismissed for pulling his face mask below his chin while on the phone. The employee had already received a written warning for the same offence. (It is assumed that it had not been a final written warning). The Commissioner argued that although the conduct of the employee can be construed as an offence, a lesser sanction, such as unpaid suspension would have been more appropriate. The employee was reinstated without backpay.
In the CCMA case of Ngcobo v East Coast Board (Pty) Ltd, (CCMA case no. KNDB3595-21 unreported), the employee was dismissed for not wearing a facemask at work. In this case, the employee did receive a final written warning for the same offence. The Commissioner determined that the employee was aware of the rules, despite the alert level regulations had been relaxed at the time. The employee conceded that other staff members could still have been infected as a result of him failing to wear his mask.
In the CCMA case of Diabela v Shoprite Checkers, (CCMA case no. GATW712-21 unreported), the employee was dismissed because she failed to self-isolate, while awaiting her Covid-19 test results. In the end, she had tested positive. At the time, the employee presented no symptoms. The Commissioner, however, was of view that the conduct of the employee was both reckless and was flagrant breach of the relevant workplace rules and regulations in place, and the dismissal was upheld.
However, in the CCMA case of CCMA decision of Mothapo v Alliance International Medical Services (CCMA case no. GATW684-21 unreported), the employee was dismissed for gross negligence for failing to wear a mask in the workplace, the Commissioner made a different ruling. At the time, the employee was not feeling well and tested positive for Covid-19. In this case, the Commissioner held that some mitigating factors such as the fact that the employee had pleaded guilty in the disciplinary hearing and took full responsibility for her action, should count favourably towards the employee, and held that the dismissal was too harsh. It was further noted that despite the employee being suspended while self-isolating, the employer required the employee to be physically present at her disciplinary hearing despite the request to hold the hearing virtually. This expectation to be physically present seemed to be contradictory to the employer’s harsh stance on curbing the spread of the disease.
As a rule of thumb, it is best to ensure that all reasonable actions are taken before a dismissal is considered. It is also important to consider all reasonably mitigating factors before a decision is taken. And lastly, it is important to be consistent in one’s intention to curb the spread of the disease.
