As we move 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.

The recent CCMA case of Botha v TVR Distribution [2020] 12 BALR 1282 (CCMA) has shown that COVID-19, lockdowns and the unique times we find ourselves in, do not excuse a refusal to obey a lawful and reasonable instruction.

In this case Mr 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, Mr 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.

These allegations were shown to be false. 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 Mr Botha to travel. Ultimately, Mr 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”. (We pause to mention that Mr Botha had a history of insubordination and insolence which contributed to the decision of dismissal.)
  • Mr Botha had clearly refused to report for duty on 30 April 2020.

Given the above, the Commissioner found that Mr 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 Mr Botha had had previous “run-ins”. The presiding officer could therefore have formed a negative opinion of Mr Botha prior to the hearing. In addition, Mr 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 Mr Botha as compensation.

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. 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.

Source: Cliffe Dekker Hofmeyr | by Hugo Pienaar and Jaden Cramer