Going to Work whilst being Covid Positive

An employee from Eskort Pty Ltd, assistant butchery manager, Stuurman Mogotsi, reported to work after one of his colleagues (whom he travelled with to and from work) contracted Covid-19. On 1st July 2020, the colleague fell ill – and on 20 July 2020 tested positive for Covid-19. Mr Mogotsi was being informed by management to stay home, but he still reported for duty on 10 July 2020. Mr Mogotsi took a Covid-19 test on 5 August 2020 and on 9 August 2020 the test came back positive. Mogotsi continued working, even after he experienced symptoms and tested positive for Covid-19.

The employer discovered, through video footage, that on 10 August 2020 Magotsi hugged a fellow employee who had a heart operation five years earlier and had recently experienced post-surgery complications. He was also observed walking around the workplace without a mask.

Eskort had various Covid-19 policies and procedures in place. Mr Mogotsi was a member of Eskort’s inhouse ‘Coronavirus Site Committee’ and responsible for putting up posters in the workplace about what to do in the event of exposure.

Mr Mogotsi was found guilty during an internal disciplinary process and fired in September 2020. After his dismissal, he lodged a complaint of unfair dismissal with the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA found the employee’s conduct 'extremely irresponsible' and 'grossly negligent' – yet ruled that the dismissal was unfair. Mogotsi was therefore only handed a final written warning and reinstated.

Eskort then approached the Labour Court to challenge the CCMA ruling. Labour Court Judge Edwin Tlhotlhalemaje overturned the decision by the CCMA (which stated that Mogotsi must only receive a final written warning). The Labour Court ordered the dismissal of Mogotsi for refusing to self-isolate and for continuing working - despite testing positive for Covid-19.

In his defence, Mogotsi mentioned that he did not know that he needed to self-isolate, and felt victimised by his employer. The Court dismissed his defence, saying that he should have been aware of the protocols in his role as a Manager.

It is clear from this judgment that it is necessary to follow health and safety protocols in the workplace, as regulated by several laws, regulations and guidelines issued under the current Disaster Management Regulations, as well as health and safety legislation. Employers must further ensure that their Disciplinary Codes address non-adherence of Covid-19 measures.