By Loyiso Sidimba for IOL
The Labour Court has ordered the dismissal of an employee who refused to self-isolate and continued working despite testing positive for Covid-19.
Labour Court Judge Edwin Tlhotlhalemaje overturned the Commission for Conciliation, Mediation and Arbitration’s (CCMA) decision to hand Eskort assistant butchery manager Stuurman Mogotsi a final written warning.
Mogotsi was found guilty in the internal disciplinary process and fired in September last year.
However, after referring an unfair dismissed case at the CCMA he was handed a final written warning and reinstated.
Eskort approached the Labour Court to challenges the CCMA ruling.
The CCMA had found that Eskort’s disciplinary code and procedure called for a final written warning in such cases and failed to justify the sanction of dismissal and ruled that Mogotsi must be reinstated retrospectively, without back-pay and given a final written warning.
On March 18, Judge Tlhotlhalemaje reviewed and set aside the CCMA award and substituted the ruling with an order that Mogotsi’s dismissal was substantively fair.
Mogotsi had been found guilty of gross negligence in that after receiving his Covid-19 test results, which were positive, he had failed to self-isolate, continued working for three days and put the lives of his colleagues at risk.
In the three days he continued working after testing positive for Covid-19 he failed to follow workplace health and safety protocols and to adhere to social distancing and personally came to work to hand in a copy of his results.
Judge Tlhotlhalemaje described Mogotsi’s actions of not informing his employer about his results, hugging fellow employees, walking around his workplace without a mask as extremely irresponsible in the context of the Covid-19 pandemic, and therefore grossly negligent.
“For reasons which are clearly incomprehensible, Mogotsi had through his care-free conduct, placed everyone he had been in contact with whether at the workplace or at his residence at great risks,” reads Judge Tlhotlhalemaje’s ruling, for which he delivered reasons on March 28.
In his defence, Mogotsi claimed he did not know that he needed to self-isolate, despite being a member of the in-house Coronavirus site committee.
After testing positive Mogotsi was found hugging a fellow employee who had undergone a heart operation five years earlier and had recently experienced post-surgery complications.
”In the midst of all the monumental harm he had caused, and which was clearly foreseen, Mogotsi could only come up with the now often used defence that he was victimised. At no point did he show any form of contrition for his conduct,” Judge Tlhotlhalemaje found, adding that Mogotsi was not only grossly negligent and reckless, but also dishonest.
The judge described the facts of the case as “indeed extraordinary”.