NULL NEW-CASE-DEALS-WITH-EMPLOYEE-WHO-REFUSED-TO-RETURN-TO-WORK-AFTER-LOCKDOWNNEW CASE DEALS WITH EMPLOYEE WHO REFUSED TO RETURN TO WORK AFTER LOCKDOWN
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NEW CASE DEALS WITH EMPLOYEE WHO REFUSED TO RETURN TO WORK AFTER LOCKDOWN
2021/01/27

Dear Client

Please see article below that was reported on in the BusinessTech forum.  (Take note that this is a copy and paste of the actual article). 

Take note that this article refers to a case that we attended to on behalf of TVR Distribution (one of our clients) at the CCMA, which we successfully opposed the Applicants alleged unfair dismissal.  The matter specifically deals with an employee who refused to report to work after lockdown, with the Employer providing the necessary PPE, Travel Documentation etc.  

In short the Employee was charged with his unauthroised absence from work, his gross insubordination / gross insolent behaviour towards his employer and the CCMA found that the dismissal was substantively fair.  

The Commissioners reasoning for procedural unfairness was because the Appointed Chairperson (the matter was chaired internally) was the person who signed off the notification form / charge-sheet, even though this was not the same person who issued the employee with the notification form.  Purely an administrative error, other than that there were no irregularities in the matter.  You need to ensure that the Chairperson at all times remains impartial and has no knowledge about the case before the time.    

Should you have any questions on the case, on the CCMAs findings (as we have received the award ourselves, being appointed to deal with the matter) please contact Tanya on 082 328 7101 or send an email on tanyab@yourside.co.za

For training queries or quotations please contact our offices for a quote.  Note we do group training and individual training.  

Regards
The Kusile Team
011 609 2630

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

Staff Writer23 January 2021

As South Africa moves into 2021, in the midst of another lockdown and with the spread and effects of the Covid-19 pandemic worse than ever, employers and employees find themselves caught in the balance of what is ‘reasonable’ in unprecedented circumstances.

This was highlighted in the recent CCMA case of Botha v TVR Distribution which showed that Covid-19 does not excuse a refusal to obey a lawful and reasonable instruction, said law firm Cliffe Dekker Hofemyr.

In this case Botha, a sales executive, was dismissed for gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown. The commissioner found that the dismissal was substantively fair but procedurally unfair.

“During the level 5 lockdown, Botha was informed that the company had applied for a certificate from the Companies and Intellectual Property Commission (CIPC) to allow it to operate as an essential service during the lockdown and that he was required to work and present himself at the office to do so.

“Mr Botha refused and provided a laundry list of excuses as to why he could not attend work, these being, among other things, that he hadn’t been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he would not break the law.”

Findings

These allegations were shown to be false, said Cliffe Dekker Hofmeyr.

The commissioner found that the company had taken safety precautions, had the necessary personal protective equipment and that the CIPC certificate was sufficient to allow Botha to travel. Ultimately, Botha simply had no intention to attend work.

In coming to the decision, the commissioner considered the evidence and stated with reference to various authors and the Labour Relations Act that:

  • 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 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 that his dismissal was therefore substantively fair.

However, the commissioner further held that the presiding chairperson and Botha had had previous “run-ins”. The presiding officer could therefore have formed a negative opinion of Botha prior to the hearing.

In addition,  Botha was not given an opportunity to provide mitigating factors for his conduct. In light of these findings, the commissioner ruled that the dismissal was not procedurally fair. Accordingly, the employer was ordered to pay one month’s salary to Botha as compensation.

Importance of case 

The takeaway from this case is that employees should not labour under the impression that Covid-19 gives them the automatic and unfettered right to choose which instructions to obey and ignore, said Cliffe Dekker Hofemyr.

“Should an employer issue a lawful and reasonable instruction, even in the midst of a pandemic, the employee is obliged to adhere to it and could face dismissal for failure to comply.

“Employers should, however, still be wary, ensuring that they follow a fair procedure in a disciplinary hearing as a procedural irregularity could result in the employer being ordered to pay compensation, even in instances where dismissal is warranted.”




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