An assistant butcher at national meat supplier Eskort Limited, who defied Covid-19 regulations and went to work even though he had tested positive for the virus, has been dismissed.<\/p>\n
This is the recent decision of the Labour Court in Johannesburg in which Judge Edwin Tlhotlhalemaje overturned a previous ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA), that Sturrman Mogotsi be reinstated with a final written warning.<\/p>\n
The judge said the case raised a topical issue surrounding the fairness of the dismissal on account of gross misconduct and gross negligence.<\/p>\n
\u201cThe facts of this case are, indeed, extraordinary. They are indicative of the need for more to be done at both the workplace and in our communities, ensuring that employers, employees and the general populace are sensitised to the realities of this pandemic; and to further reinforce the obligations of both employers and employees in the face of it, or event of an exposure,\u201d the judge said.<\/p>\n
Mogotsi, who was a member of the company\u2019s in-house Coronavirus Site Committee, was dismissed last year after being found guilty of gross misconduct for failing to disclose that he had undergone Covid-19 testing and was waiting for his results.<\/p>\n
A second charge, of gross negligence, related to the fact that he put the lives of his colleagues at risk by reporting for duty after he had tested positive.<\/p>\n
He took the matter to the CCMA.<\/p>\n
The evidence there was that he used to travel to work and back daily with a colleague in his private vehicle. The colleague fell ill, was admitted to hospital where he tested positive for the virus.<\/p>\n
At the same time Mogotsi also started to feel unwell. He consulted his wife, a traditional healer, who booked him off work. But he only stayed off two days. He took a test and was informed of the positive result on 9 August 2020.<\/p>\n
The next day he went back to work. He was observed in video footage hugging a fellow employee, who had a heart condition. He was also seen walking in the workshop without a mask.<\/p>\n
Mogotsi claimed that he had informed management about his contact with his colleague who was eventually hospitalised \u201cbut he was not given any clear directive as to what to do\u201d. He claimed he was now being victimized.<\/p>\n
He said he did not know that he needed to self-isolate.<\/p>\n
While the CCMA commissioner said his conduct was \u201cextremely irresponsible\u201d, the company had deviated from its own disciplinary code and procedure in dismissing him and he should rather be given a final warning.<\/p>\n
Reviewing the matter, the Judge said the commissioner\u2019s findings were \u201centirely disconnected (from) the evidence\u201d and that the disciplinary code was merely a guideline.<\/p>\n
He said Mogotsi\u2019s conduct was not only irresponsible and reckless but was \u201cinconsiderate and nonchalant in the extreme\u201d.<\/p>\n
\u201cHe ignored all health and safety warnings, advice, protocols, policies and procedures of which he was fully aware given his status as a manager and as a member of the committee.<\/p>\n
\u201cThrough his care-free conduct, he placed everyone he had been in contact with at great risk.<\/p>\n
\u201cIn the midst of all the monumental harm he caused, and which was clearly foreseen, he could only come up with the now-often used defence that he was victimised.\u201d<\/p>\n
The Judge said Mogotsi had shown no contrition and the trust relationship between him and the company had broken down.<\/p>\n
He further questioned the company\u2019s seemingly non adherence to its \u201cfancy Covid-19 policies\u201d, when it allowed Mogotsi, \u201ca maskless hugger\u201d, onto the shop floor.<\/p>\n
\u201cDoes a basic principle such as social distancing mean anything to anyone at the workplace? All these questions need to be addressed in light of Mogotsi\u2019s version that after (his colleague\u2019s) tests results were made known, business continued as usual hence he continued reporting for duty.<\/p>\n
\u201cIt is one thing to have all the health and safety protocols in place and on paper. These are however meaningless if no one, including employers, take them seriously.\u201d<\/p>\n