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27 Mar 2020
BY Tumi Modubu AND Prencess Mohlahlo
ENSight

 


South Africa: repercussions of allegations about a person’s coronavirus (COVID-19) status

The coronavirus (COVID-19) pandemic has, due to its high rate of transmissibility, unsettled many of us, forced us to distance ourselves socially, and to make adjustments to our way of life. We are living in a time where something as mundane as sneezing or coughing may earn you a death stare.

While the fear of contracting COVID-19 is a real and devastating reality, one of the consequences of this fear is that it has the potential for social stigma. Such stigma may arise when people associate COVID-19 with a population or region, people who have recently travelled to affected areas, or persons who have been released from quarantine or isolation. Stigmatised people may be socially rejected, and may be victimised in social spaces and more specifically in the workplace. With this in mind, what happens if an employee accuses a fellow employee of possibly being infected with COVID-19? What action can the employer take against such an employee? What remedies are at the disposal of the employee who has been wrongfully accused?

Unsubstantiated allegations by an employee against a fellow employee may attract dire consequences

In Legal Aid South Africa v Mayisela and Others, the employee was dismissed, for among other things, alleging that his superior was racist because the superior had awarded him a negative performance rating. The Labour Appeal Court (“LAC”) held that unjustified allegations of racism against a superior can have serious and deleterious consequences. Employees who make allegations of tacit racism may only do so on the basis of “persuasive objective information leading to a compelling and legitimate inference”, and the allegation must be made in accordance with grievance procedures established by the employer. Allegations of racism that are unfounded against a superior may undermine the authority of the superior and damage harmonious relations in the workplace. The court further held that false accusations of racism are “demeaning, insulting and an attack on dignity”. It may be argued that the same principles as enunciated in this LAC judgment would be applicable in a matter where unsubstantiated allegations about an employee’s COVID-19 status are made in the workplace.

The Code of Good Practice: HIV and AIDS and the World of Work, published under the Employment Equity Act, 1998, provides that there must be no unfair discrimination against, or stigmatisation of, workers on the grounds of real or perceived HIV status. It goes further to state that it is the responsibility of every worker and employer to eliminate unfair discrimination in the workplace. It may be argued that these same principles also apply in relation to COVID-19.

If the principles in Mayisela are adopted, it becomes apparent that allegations in relation to an employee’s COVID-19 status may not only lead to stigmatisation but may also be considered an impairment of the employee’s dignity, privacy and reputation. If the allegations about an employee’s status are spread in the workplace, this may also constitute harassment. As in Mayisela, where the employer dismissed Mr Mayisela for making unsubstantiated allegations of racism against his superior, employers may, subject to their codes of conduct and disciplinary codes in the workplace, take disciplinary action against employees who make unsubstantiated allegations about the COVID-19 status of fellow employees.

Claim for defamation

It is also conceivable that an allegation that an employee has tested positive for COVID-19, is defamatory. A defamatory statement can be described as a statement that is likely to injure the good esteem in which a person is held. The Constitutional Court, in Khumalo and Others v Holomisa, stated that the elements of defamation are:

  • the wrongful;
  • intentional;
  • publication of a defamatory statement
  • concerning an individual.

In Roux and Others v Dey, the court held that, to be successful in a defamation claim, one does not need to establish “each and every one of these elements”; however, a person wishing to avoid a claim for defamation must then raise a defence which excludes either wrongfulness or intent.

One can raise various defences to negate the element of wrongfulness. These include

  • that the statement was true and in the public interest;
  • that the statement constituted fair comment, and
  • that the statement was privileged.

An argument can be made that such an allegation to a chosen representative of the company, such as a Human Resources official, qualifies as a “privileged occasion”. To state simply, the defence of a “privileged occasion” can be utilised if a person who makes an assertion has a right, duty or interest to make the assertion, and the person to whom the assertion is made has a corresponding right, duty or interest to learn of such assertion. A person can also raise the defence that the person making the statement did not have the necessary intent to defame another person.  

A state of disaster in South Africa in terms of the Disaster Management Act, 2002

Subsequent to President Cyril Ramaphosa declaring a state of disaster in South Africa in terms of the Disaster Management Act, 2002, the Minister of Cooperative Governance and Traditional Affairs issued regulations under the Act, (the “Regulations”) regarding the steps necessary to prevent the escalation of the disaster or to alleviate, contain and minimise the effects of COVID-19.

The Regulations place certain restrictions on gatherings and trade. In terms of section 11(4) of the Regulations, any person who intentionally misrepresents that he, she or any other person is infected with Covid-19, is guilty of an offence. Section 11(5) provides that any person who publishes any statement, through any medium, including social media, with the intention to deceive any other person about Covid-19; the Covid-19 infection status of any person; or any measure taken by the government to address Covid19, commits an offence. The offences, upon conviction, attract a fine or imprisonment for a period not exceeding six months, or both a fine and imprisonment.

Employees who become the subject of allegations about their COVID-19 status may, in addition to the avenues discussed above, also report the offending employee to the police. How sections 11 (4) and (5) of the Regulations will be interpreted and applied by the courts remains to be seen.  

When is it permissible for an employee to disclose their suspicions about a fellow employee’s COVID-19 status?

The regulations relating to the surveillance and the control of notifiable medical conditions published under the National Health Act, 2003 provide that any member of the community, including community health workers, local leaders, traditional or religious leaders, who are aware or reasonably suspect that a person in the community is a case or carrier of a notifiable medical condition listed in the regulations; or a medical condition deemed to be notifiable by the Minister of Health; or was in contact with a carrier or case of a notifiable medical condition, must immediately report this to the nearest health establishment.

Respiratory diseases caused by a novel respiratory pathogen are listed as notifiable diseases (examples of novel respiratory pathogens are listed as including influenza A virus and MERS virus). COVID-19 falls within this definition. A health establishment is defined in the National Health Act, as “the whole or part of a public or private institution, facility, building or place, whether for profit or not, that is operated or designed to provide inpatient or outpatient treatment, diagnostic or therapeutic interventions, nursing, rehabilitative, palliative, convalescent, preventative or other health services.”

Therefore, while an employee may not make unsubstantiated statements in the workplace about another employee’s COVID-19 status or make such statements with the intention to deceive, they must notify health establishments of their reasonable suspicions.

In order to curtail the occurrence of stigma in the workplace, education is key. Continuous education on the pandemic is necessary, as it is accepted that what the world is faced with is a “novel” situation and it is further accepted that there are no fixed answers to many questions and queries, and adjustments have to be made as and when necessary.  

Reviewed by Peter le Roux, an executive consultant in ENSafrica’s Employment department.

 

Tumi Modubu

Dispute Resolution | Senior Associate

tmodubu@ENSafrica.com

+27 82 560 3597

Prencess Mohlahlo

Employment | Associate

pmohlahlo@ENSafrica.com

+27 63 688 7808

Covid-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.

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