New Labour Law case deals with a South African employee who refused to come into work during lockdown.

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January 28, 2021
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April 12, 2021

New Labour Law case deals with a South African employee who refused to come into work during lockdown.

2021 will present employers with many considerations that must be factored into decision making when it comes to managing and guiding employees through the ongoing Covid-19 pandemic.  Employers and employees will find themselves caught in the balance of what is ‘reasonable’ in unprecedented circumstances and will need to draw on insights and guidance from their trusted advisors. 

The recent CCMA case of Botha v TVR Distribution has highlighted that Covid-19 does not excuse a refusal to obey a lawful and reasonable instruction. So, what does this case ruling mean for employers? 

Botha, a sales executive, was dismissed for gross insubordination and insolence because he refused to resume his role citing the Covid-19 lockdown rulings. During the level 5 lockdown, Botha was informed that the company had applied for a certificate from the Companies and Intellectual Property Commission (CIPC) thereby enabling it to operate as an essential service provider during the lockdown and as such he was therefore required to report for duty.

Botha refused to return to work and provided mitigating factors or “excuses” as to why he felt he could not reasonably attend to his normal work duties, in the normal course. Amongst others he cited that the company had not provided the necessary personal protective equipment, that he had not been provided the needed essential services permit and that because the level 5 lockdown regulations did not permit him to work, he deemed the instruction to work as a contravention of the law.”

Upon hearing the case the CCMA commissioner ruled that the dismissal was substantively fair, but procedurally unfair. *Note the findings below:

  • The allegations were shown to be false, 
  • The commissioner found that the company had applied the necessary safety precautions and had the necessary personal protective equipment in place and that the CIPC certificate was sufficient to allow Botha to travel. 
  • Ultimately, it was determined that Botha simply had no intention to attend work.

In reaching his finding, the commissioner considered the evidence presented and referenced various authors as well as the Labour Relations Act which highlighted the following :

  • Employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority.
  • Item 3(4) of Schedule 8 of the Code of Good Practice: Dismissal states that “generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable”.
  • Item 3(5) of Schedule 8 states that “when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself”. (Botha reportedly had a history of insubordination and insolence which contributed to the decision of dismissal.)
  • Botha had clearly refused to report for duty on 30 April 2020.

Given the above, the commissioner found that Botha had failed to obey a lawful and reasonable instruction, was insolent and insubordinate in doing so, and therefore ruled that his dismissal was substantively fair.

However, the commissioner further highlighted that it had become evident that the presiding chairperson and Botha had had previous “run-ins” and as such the presiding chairman could therefore have entered the hearing with a pre conceived negative opinion of Botha prior to the hearing, therein implying that independence, bias and impartiality was not evident. 

In addition, it was established that Botha was not given a fair opportunity to provide mitigating factors for his conduct, which is a standard requirement of fair procedure. As a consequence thereof, it was deemed that the Company had significantly compromised the Employers case by appointing a Chairman who was neither impartial or independent and as a result the commissioner ruled that the dismissal was not procedurally fair. 

Accordingly, the employer was therefore ordered to pay one month’s salary to Botha as compensation for the breach of procedural fairness. 

Importance lessons for employers to consider:

Employees should not consider Covid-19 as providing them with an automatic right to choose which management instructions to obey and ignore, 

When an employer issues a lawful and reasonable instruction, then the employee is obliged to adhere to it, failing which they can legitimately face dismissal for failure to comply.

Employers should always adhere to the requirement to adopt a fair procedure in a disciplinary hearing, knowing that any deviation or procedural irregularity can result in the employer being ordered to pay a penalty in the form of compensation, even in instances where dismissal is warranted.

Do you need advice, guidance and support to address your interal disciplinary matters, chair your hearings and protect you from unneceesary labour risk? Call on our professional HR & IR labour consultants to assist, contact us at infordna@crowe.za.com or on 087 057 2613. 

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice.  Errors and omissions excepted (E&OE)