Regulation 70(5) states that an employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a face mask while performing his or her duties, meaning that employees ought to always wear masks when performing their duties, irrespective of where the duties are performed.
More than a year after the start of the Covid-19 lockdown, many citizens have adopted a lax approach to mask-wearing, social distancing and sanitisation.
Public place In terms of the Disaster Management Act, regulation 70(2) of the current adjusted alert level 1 regulations provide that wearing a face mask is mandatory for every person when in a public place, excluding children under six years old.
Alone in private offices are not “public places” Despite this, employers tend to condone not wearing masks where employees are alone in their private offices, on the basis that private offices are not “public places”.
Failure to adhere to these regulations would result in a person who commits this offence being liable, on conviction, to a fine or of imprisonment not exceeding six months, or to both a fine and imprisonment.
To comply and avoid any possible adverse finding if an inspection is conducted, it is advisable to have a policy in the workplace that complies with regulation 70(5) and to have mask wearing mandatory in all spaces, closed or open, private or public, at the employer’s premises.
However, a recent Labour Court judgment in South Africa indicates that employers may, within reason, be able to fairly dismiss employees for not adhering to Covid-19 safety protocols, say legal experts at law firm ENSafrica.
In the recent judgement of Eskort Limited v Stuurman Mogotsi the Labour Court found the dismissal of an employee to be fair, based on:
- The employee’s conduct in walking around without a mask and hugging fellow employees after having tested positive;
- The employee’s nonchalant attitude.
- The employee’s role in being part of the Covid-19 awareness committee in the workplace;
- The employee’s negligence in failing to disclose his Covid-19 positive test results, placing the lives of colleagues and customers in danger;
- Gross misconduct related to his failure to disclose to the employer that he took a Covid-19 test; and
- Gross negligence in that even after receiving his positive Covid-19 test results, he failed to self-isolate and continued reporting for work, putting the lives of his colleagues and their families in danger.
In this case, the Labour Court sought to consider all surrounding circumstances in totality prior to reaching a decision that the dismissal of the employee was fair.
Employers whose disciplinary code prescribes the appropriate sanctions for misconduct should be careful not to follow it blindly even if not wearing a mask is in contravention of the national laws,
Non-compliance could have serious ramifications. However, in taking heed of the court’s warning to take Covid-19 compliance seriously, employers should equally be mindful of the manner in which they enforce compliance and mete out discipline for non-compliance. Dismissal in this instance would likely be overly harsh and a verbal warning might be more suitable or a mere reminder to be more vigilant. Factors such as the severity and impact of the transgression, as well as any remorse shown, should be taken into consideration.
The seriousness of the transgression and the surrounding circumstances in the Eskort case, however, most certainly warranted dismissal.