The CCMA has rendered a number of arbitration awards after employees referred alleged unfair dismissal disputes for having failed to report for duty. In each instance the employee concerned claimed that the national lockdown was the reason for the absence.
Just how valid the saying that “each case turns on its own facts” is, becomes apparent when we compare the relief granted in respect of some of these arbitration awards.
Dismissed for insubordination
Most of the children’s homes in the Gauteng region required staff members to remain on the premises throughout lockdown to ensure that the children residing there would not become infected.
A child-care worker whose 17-year-old daughter had been allowed to stay with her, decided to go home on her day off. Although management at the St Mary’s Children’s Home reminded her that she had to take her days off on the premises in order to protect the institution’s children, she walked out of the meeting and went home.
The Commissioner upheld the dismissal on the basis that her insubordination was sufficiently serious and deliberate to constitute gross misconduct.
Dismissed for abandoning employment
A lecturer at the ETA College in Bloemfontein went home to her family in Cape Town before lockdown started.
The College made several attempts to contact her to resume her work once lockdown had been relaxed. When it was not able to do so, it appointed a temporary lecturer to conduct her classes. She was finally dismissed in June 2020 on the basis that she had abandoned her employment.
The Commissioner confirmed the dismissal because the applicant failed to explain why she did not return to work despite repeated instructions to do so.
Reinstated given the facts
Metropolitan Health sent its entire workforce home when the country was placed on lockdown on 27 March 2020. Shortly after having done so, it discovered that it was classified as an essential service, and therefore instructed all its employees to return to work.
Mr Mabusela refused because shortly before lockdown was announced he had been granted leave to attend a traditional ceremony in another province.
His defence was not only that he was prohibited from travelling back, but also that he had offered to work remotely from another office. His employer argued that it had the right to instruct its employees to return to work.
Mr Mabusela complained on Twitter that his employer was forcing him to sacrifice his annual leave. The employer contended that this brought its good name into disrepute, justifying dismissal.
The Commissioner determined that even if the Tweet amounted to misconduct, it had to be seen in the context of all the facts, rendering the dismissal inappropriate. He was reinstated retrospectively with a final written warning.
Protecting vulnerable family members wasn’t AWOL
Parmalat was designated as an essential service. After refusing a laboratory analyst’s application for unpaid leave, the analyst elected not to go to work during Level 5 of the lockdown because she said she was afraid of infecting her elderly mother and her asthmatic son.
She was absent from work from 27 March until 17 April 2020. Following a disciplinary hearing, she was dismissed for having been absent without leave.
The Commissioner found that the employer had not considered her request for unpaid leave in the context that she wanted to protect her vulnerable family. She was accordingly retrospectively reinstated.
Although lockdown was central to all four these arbitrations, each case was determined on its own unique facts.