CCMA case throws spotlight on employee work attitudes in lockdown-era
Employers and employees are increasingly find themselves balancing what is ‘reasonable’ in the country's unprecedented life and work circumstances.
Workers should not labour under the impression that the Covid-19-era workplace gives them the “automatic and unfettered” right to cheery pick instructions from superiors, law firm Cliffe Dekker Hofmeyr has cautioned.
This was highlighted during a recent case heard at the Commission for Conciliation, Mediation, and Arbitration (CCMA) – Botha v TVR Distribution – that Covid-19 regulations do not brook a refusal to obey a lawful and reasonable instruction.
In the case, Botha, a sales executive, was dismissed for gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown in April last year
The CCMA commissioner found that the dismissal was “substantively fair, but procedurally unfair.”
Laundry list of excuses
At the height of 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.”
The CCMA found the ‘excuses’ to be false, said Cliffe Dekker Hofmeyr.
The commissioner pronounced that the company had taken the necessary safety precautions; had adequate personal protective equipment; and that the CIPC certificate granted Botha the authorization to travel.
Ultimately, the commissioner said, Botha simply had no intention to attend work.
Labour Relations Act
In reaching a finding, the commissioner considered the evidence in reference with sections of the Labour Relations Act in 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.)
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 because the presiding chairperson and Botha had had previous “run-ins,” the presiding officer could therefore have formed and held 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 as compensation to Botha.
Takeaways for both employee and employer
The takeaway from this case, the law firm noted, is that employees should not take for granted that Covid-19-induced lockdown rules affords a person the automatic right to choose which instructions to obey and ignore.
“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 weary, 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,” as is the instance in this case.