South Africans who break Covid-19 rules outside of work can land in trouble with their bosses

Employees who don’t follow South Africa’s regulations Covid-19 outside of the office could face potential repercussions at work, too, say experts at legal firm Cliffe Dekker Hofmeyr.

According to the firm, South African employers are required to adhere to the Occupational Health and Safety Act (OHSA), which requires them to create a working environment that is safe and without risks to the health of workers.

It also requires employers to take such steps as may be reasonably practicable to eliminate or mitigate the hazard or potential hazard of the coronavirus.

“It is a long-established principle in labour law, that a transgression of the employer’s health and safety policies and procedures will lead to disciplinary action, and may justify the termination of the transgressing employee’s employment.

“The question of whether employers have the right to discipline employees for reckless (or even unlawful) conduct such as failing or refusing to wear a face mask in a public setting or on public transport, and consequently potentially exposing themselves to the highly infectious coronavirus disease ‘outside of the workplace’ arises.”

Cliffe Dekker Hofmeyr said that this question is pertinent to the high likelihood of the employer suffering reputational damage, if the employee’s conduct can be traced back to the employer, or the respective employee potentially contracting the virus and causing the spread thereof within the workplace.

Becoming sick vs intentionally breaking the rules 

Cliffe Dekker Hofmeyr said it is important to distinguish between an employee becoming sick in the ordinary course and an employee who intentionally flouts the preventative measures put in place by the government to curb the transmission of Covid-19.

There is no general duty on any employee to avoid getting sick in the ordinary course. However, in terms of government regulations, it is an offence to, for example, not wear a face mask in public.

“Generally, disciplining employees for misconduct outside of the workplace as a whole is usually not as straight forward as it may seem,” the firm said.

“The general rule in these circumstances is that actions performed outside of the workplace and working hours are beyond the scope of the employer’s disciplinary authority.”

This is based on the premise that the private lives of employees are usually of no concern to their employers and resultantly employers have no right to dictate the conduct of employees outside of their working hours.

“However, disciplinary action for an employee’s extramural conduct may be justified in certain circumstances, namely when a connection can be established between the extramural misconduct of the employee and the negative impact that this conduct has on the employer’s business or the employment relationship.”

Employees also have a responsibility 

Besides employers’ obligations to provide a safe working environment for employees, there is a dual responsibility on employees to also comply with these standards, said Cliffe Dekker Hofmeyr.

“Therefore, by potentially exposing oneself to COVID-19, in contravention of the established legislative preventative measures, will be in contravention of the ethical behaviour that the employer need not remind the employee about in terms of taking reasonable precautions to curb the spread of the coronavirus.”

The fact that the employee’s conduct may result in a potential outbreak at the place of business would naturally concern an employer, who not only has a statutory duty to ensure a safe and healthy working environment, but will also be concerned with productivity of employees, unplanned payment of sick leave or even death of vulnerable employees and the economic risk of having to shut down the place of business, it said.

However, the firm noted that dealing with misconduct outside of the workplace is difficult.

“All things considered, the challenge is describing the misconduct outside the workplace and framing the charges because most disciplinary codes focus on misconduct perpetrated at work and hardly cover misconduct out of the workplace.

“To overcome this challenge the employer must prove that the rule the employee broke is so obvious and well-known that there was no need to communicate it.

“Alternatively, it is advisable that the employer provides for such in the disciplinary code that employees can be disciplined for external misconduct in relation to employees acting unlawfully and thus exposing themselves to Covid-19 because of the huge risk this poses to the business of the employer as well as health and safety of employees and the general public.”

Cliffe Dekker Hofmeyr said that employers should inform employees that they are free to do as they please when they leave work, but that they should continue to act in accordance with the law and not act in a manner that will negatively affect their job or the health and safety of fellow employees outside of the workplace.

• Commentary by Michael Yeates (director), Kgodisho Phashe (associate designate) and Shanna Eeson (candidate associate) of Cliffe Dekker Hofmeyr. 

Read: A year of lockdown: South Africa will count the costs this week