BY Jessie Gertzen AND Tshepo Mofokeng
Workplace safety: Is it a disciplinary offence to come to work while sick?
In DHL Supply Chain (Pty) Ltd v Sauls F N.O. and Others, the Labour Court (“Court”) was called upon to determine whether, amongst others, it was fair to dismiss an employee who knowingly and deliberately exposed others at the workplace to a life-threatening virus. Although the facts arose in the context of the COVID-19 pandemic, the principles that the court outlined have much wider application to employment relationships generally. We unpack them below.
In this case, a tow truck driver was charged, amongst other things, with failing to self-isolate whilst awaiting the outcome of a COVID-19 test and thus wilfully endangering the safety of others in the workplace. A commissioner of the Commission for Conciliation Mediation and Arbitration found that the employee had been unfairly dismissed, from both a procedural and a substantive perspective.
Aggrieved by this outcome, the employer launched an application in the Labour Court seeking to review and set aside the arbitration award.
The commissioner’s finding that the dismissal was procedurally unfair was based on the argument that the way in which the disciplinary charge had been formulated meant that the employee did not understand the charge. The court rejected this argument on the basis that the employee did not argue that his dismissal had been procedurally unfair at the arbitration. This meant that the employer was not afforded an opportunity to make submissions on this aspect before the commissioner took a decision on it. The court also found that, in any event, the employer led undisputed evidence that it had notified the employee of the allegations against him in a language that he understood and afforded him an opportunity to answer to the allegations. It was therefore evident that the employee understood the charges brought against him and that the commissioner’s reasoning was not based on evidence presented to him, rendering the conclusion unreasonable.
Regarding the fairness of the employee's dismissal, the commissioner found that the employer failed to prove that the employee was aware of the rule that he had to self-isolate until such time as he received the results of a COVID-19 test. The court however rejected this assessment. The commissioner made this finding despite the fact that the employer had led evidence during the arbitration that the employee was guilty of putting the health and lives of other employees in danger by going to work while awaiting the results of his COVID-19 test.
Furthermore, there was evidence that employees were trained on the steps to be taken when they suspected that they were infected with the virus and that they were instructed not to attend work until they received their test results. The fact that the employee went for a COVID-19 test meant that he suspected that he had contracted the virus but despite this, he went to work before receiving his results. The court held that the employer was well within its rights to dismiss the employee for misconduct when the employee ought reasonably to have known that the conduct constituted dismissible misconduct; despite the absence of an express written rule prohibiting such conduct. Particularly, the court opined that:
“It cannot be unfair to dismiss an employee who, knowingly and deliberately expose others at the workplace to a deadly virus. The covid-19 pandemic may have come and gone but its destruction cannot be forgotten. The gravity of the third respondent's misconduct at the time of its commission should not have been under estimated by the commissioner. By his own admission, the third respondent was in contact with a security guard and a nurse who the applicant had an obligation to provide a safe working environment. The evidence tendered at arbitration proved that the applicant had proved the substantive fairness of the third respondent's dismissal. The commissioner's decision to the contrary is not based on the evidence. It therefore falls outside the bounds of reasonableness and stands to be reviewed and set aside.”
In conclusion, the review application was upheld on the basis that the employee was guilty of misconduct justifying dismissal and that the employer’s decision to dismiss the employee was fair.
While the facts of this case arose during the COVID-19 pandemic, the principles and issues that it foregrounds have wider relevance and application. The case ultimately underscores an employee’s duty of care and the principle that, when an employee deliberately and recklessly places their colleagues at risk of health hazards, potentially causing harm to their fellow workers, it constitutes misconduct which may well justify dismissal. Whether this will be the case will be fact specific.
It is therefore important for employers to exercise care in assessing the nature of the risk posed, its characteristics, and the potential outcomes of the employee’s conduct might yield. The ultimate decision regarding whether to terminate employment must hinge on the repercussions of such serious misconduct.
Also of interest in this judgment is the court’s acceptance of the view that disciplinary rules may be enforced even if these rules are not explicitly detailed in a specific written policy. In this case, the employer had implemented detailed training measures as to the duties of employees during the COVID-19 pandemic; the court held that this had been sufficient to inform the employee of the conduct expected of him as well as the consequences of a failure to comply with these rules.
Reviewed by Peter le Roux, an Executive Consultant in ENS’ Employment practice.
Employment | Associate
Employment | Candidate Legal Practitioner