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25 May 2021
BY Lauren Salt AND Matlhatsi Ntlhoro

A legal perspective on dealing with employees who refuse to mask up

More than a year after the start of the COVID-19 lockdown, many citizens have adopted a lax approach to mask wearing, social distancing and sanitisation. However, a recent Labour Court judgment in South Africa indicates that employers may, within reason, be able to fairly dismiss employees for not adhering to COVID-19 safety protocols.

In terms of the Disaster Management Act, 2002, regulation 70(2) of the current adjusted alert level 1 regulations provides that wearing a face mask is mandatory for every person when in a public place, excluding children under six years old. Despite this, a number of employers have condoned lawlessness, or rather masklessness, where employees are alone in their private offices, on the basis that private offices are not “public places”.

However, regulation 70(5) states that an employer may not allow any employee to perform any duties or enter the employment premises, if the employee is not wearing a face mask while performing his or her duties. This regulation seems to suggest that employees ought to wear masks at all times when performing their duties, irrespective of where the duties are performed. On a strict interpretation of the regulation, this would include where an employee is working remotely from home. This is unlikely what the drafters of the regulation intended.

A failure to adhere to these regulations would result in a person who commits this offence being liable, on conviction, to a fine or of imprisonment not exceeding six months, or to both a fine and imprisonment.

From a compliance perspective, and to avoid any possible adverse finding if an inspection is conducted, the safest approach for employers would be to have a policy in the workplace that complies with regulation 70(5) and to have mask wearing mandatory in all spaces, closed or open, private or public, at the employer’s premises.

In the recent judgment of Eskort Limited v Stuurman Mogotsi & Others LC, the Labour Court found the dismissal of an employee to be fair, based on:

  • gross misconduct related to his failure to disclose to the employer that he took a COVID-19 test; and
  • gross negligence in that even after receiving his positive COVID-19 test results, he failed to self-isolate and continued reporting for work, putting the lives of his colleagues and their families in danger.

In this case, the Labour Court sought to consider all surrounding circumstances in totality prior to reaching a decision that the dismissal of the employee was fair. The following factors were considered:

  • the employee’s role in being part of the COVID-19 awareness committee in the workplace;
  • the employee’s negligence in failing to disclose his COVID-19 positive test results, placing the lives of colleagues and customers in danger;
  • the employee’s conduct in walking around without a mask and hugging fellow employees after having tested positive; and
  • the employee’s nonchalant attitude.

In some instances, the sanction of dismissal might not be appropriate for mask-related transgressions (even if not wearing a mask is in contravention of the national laws). For example, in circumstances where an employee hastily leaves their office to fetch printing and forgets to wear their mask and is seen and confronted by another employee three metres down the corridor, but when confronted, the employee quickly apologises and fetches their mask and puts it on. Dismissal in this instance would likely be overly harsh and a verbal warning might be more suitable or a mere reminder to be more vigilant.

Employers whose disciplinary code prescribes the appropriate sanctions for misconduct should be careful not to follow it blindly. Dismissal does not automatically follow where the transgression amounts to a breach of the law. As in 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 consideration. The seriousness of the transgression and the surrounding circumstances in the Eskort case, however, most certainly warranted dismissal.

Employers and employees should be mindful of not becoming blasé about COVID-19 compliance in the workplace. Employees need to understand that their non-compliance could have serious ramifications. However, in taking heed of the court’s warning to take COVID-19 compliance seriously, employers should equally be mindful of the manner in which they enforce compliance and mete out discipline for non-compliance. Employers should not hastily jump to terminate transgressors’ employment, and should ensure that the facts of the case support a sanction of dismissal.

 

Lauren Salt

Employment | Executive

lsalt@ENSafrica.com

+27 84 509 6494

 

Matlhatsi Ntlhoro

Employment | Associate

mntlhoro@ENSafrica.com

+27 66 476 6476