Every COVID –19 arbitration turns on its own facts

It is now trite that the Regulations issued in terms of the Disaster Management Act require employees who have been exposed to someone who has tested positive, or who has personally experienced COVID –19 symptoms, must go for a test and self-isolate while waiting for the result. It is equally trite that deliberately exposing others to the deadly virus constitutes a criminal act.

As the wave in the different provinces spike, employers are faced with more and more employees who elect to self-isolate for these reasons. In some instances, however, the decision to self-isolate causes the employer to question such conduct.

It is apparent from the arbitration award in the matter of Botha v TVR Distribution that workplace rules and processes still have to be followed and that employees are not exempt from obeying a lawful and reasonable instruction to report for duty.

The failure to do so shall invariably result in a disciplinary hearing. Obviously, if the facts show that the instruction was neither lawful nor reasonable, an arbitrator may very well find that the sanction of dismissal was unfair, and reinstate the employee.

In the CCMA arbitration of Mehlala and Cybersmart (Pty) Ltd the employer was of the view that the employee was absent without leave, and insubordinate for disobeying an instruction to return to work.

Although the employee constantly kept the employer in the loop, and had submitted proof that she tested positive before submitting a further note to show that she was still ill and booked off for a further period, the employer was suspicious because of a discrepancy in the two handwritten notes.

Despite an explanation from the clinic as to why there was a handwritten discrepancy between the two notes it had issued, the employer subjected the employee to a disciplinary hearing where she faced charges of insubordination. She was found guilty and given a final written warning for failing to report for duty as instructed.

After questioning whether the instruction to report for duty was lawful, the commissioner concluded that it was neither lawful nor reasonable.

In the circumstances the commissioner concluded that the employer had committed an unfair labour practice, and set aside the final written warning.

The employee in the arbitration between October and Teleperformance SA (Pty) Ltd was a call centre agent. He was the only employee who did not go to work for four days during the May 2020 lockdown.

His explanation was that a colleague had been infected with the COVID–19 virus at work, that he was concerned about the company’s health and safety directives, and that he had obtained permission from his supervisor to stay home until he felt safe to return to work. He testified that he was told that the principle of “no work no pay” would be applied while he stayed at home.

The employer testified that the company had complied with all the health and safety lockdown directives; that the employee had a poor attendance record; was previously given a final written warning for the same misconduct and therefore knew the rule; and had failed to inform the company of his whereabouts. Therefore, it was submitted, the dismissal was fair.

The commissioner turned to the April 2020 Regulations issued in terms of the Disaster Management Act which provided, inter alia, that employees may refuse to go to work if they reasonably believed that doing so would potentially expose them to the virus; and that employees who did not go to work for this reason could not be dismissed, disciplined or harassed.

The commissioner also found that the employer should not have relied on the company’s sick leave and disciplinary policies in the circumstances, but should have given effect only to the applicable Regulation. Not having done so, meant that the employee’s dismissal was unfair. He was awarded compensation equivalent to four months’ salary as he did not seek reinstatement.

The arbitration between Beck and Parmalat SA (Pty) Ltd introduced a totally new reason why an employee failed to report for duty as instructed.

The employee, who worked in a laboratory, did not give effect to the instruction to return to work and instead spent 21 days during Level 5 of the lockdown at home to protect vulnerable family members – she was concerned about exposing her elderly mother and asthmatic son to COVID-19.

When she returned, she was subjected to a disciplinary hearing and dismissed.

The commissioner noted the fact that the employer had refused to grant the employee unpaid leave or to accommodate her absence in any way:

[14] … The applicant understood that she was not sick and could not take sick leave. She understood that her request for annual leave was denied …, and she offered and requested to be granted unpaid leave. She was willing to sacrifice her salary to protect her family, but that offer was not even entertained.

The commissioner found that the employer was more concerned about creating a possible precedent than with dealing with the employee’s personal circumstances. Finding the dismissal to have been unjustified and unfair, the employee was reinstated with only with a month’s back pay despite the fact that it took some months before the arbitration was determined.

These decisions show us that employers must of necessity consider the facts of any alleged COVID–19 related misconduct in the context of the applicable Regulations that are issued from time to time in terms of the Disaster Management Act – and not strictly in terms of any existing disciplinary code.

As time passes, more and more COVID-19 disputes will be referred to the CCMA. It will be interesting to follow the different arbitration awards to see how commissioners come to grips with these disputes, given that there is not yet much guidance from the Labour Courts.