Legal updates and opinions
News / News
Dishonesty surrounding the breach of Covid-19 protocols in the workplace is a fair ground for dismissal
Breach of Covid-19 protocols in the workplace
Issue
Whether dismissal for dishonesty for infringing the employer’s Covid-19 protocols, was procedurally and substantively fair.
Summary
The dismissal of an employee who had colluded to corroborate a false statement of facts in relation to the breach of Covid-19 protocols by a fellow employee, was considered to be substantively and procedurally fair.
Facts – Disciplinary proceedings relating to Covid-19 protocols
This was the issue considered by the Commission for Conciliation, Mediation and Arbitration (“CCMA“) in the case of Ntini v In2Food Group (Pty) Ltd [2022] 2 BALR 177 (CCMA). In this matter, the employee was found guilty of gross dishonesty for aiding a fellow employee in attempting to deceive the employer regarding the facts in disciplinary proceedings relating to Covid-19 protocols. The incident concerned two co-workers of the employee who had embraced one another in a greeting which was in breach of the Covid regulations.
The employer submitted that the employee colluded with a fellow employee in order to protect said employee from discipline for contravening Covid regulations “by hugging”. The employer submitted that the employee and his co-worker colluded in order to misrepresent what actually happened on the day. The incident was videotaped and the footage provided directly contradicted the averments by the employees.
Legal provisions considered by the CCMA
In considering whether Mr Ntini ought to have been given a final written warning as opposed to being dismissed, the Commissioner considered Transnet Freight Rail v Transnet Bargaining Council and others [2011] 6 BLLR 594 (LC) which held that:
“…the importance of the rule and the implications of its transgression must be an essential consideration in determining whether dismissal is justified. A further consideration ought to be the implications of being lenient in the application of an important rule and the message such lenience sends to other employees regarding the infringement of such a rule. The need to deter other employees from committing the same misconduct is a response to risk management and is as legitimate a reason for dismissal as a breakdown in trust.”
CCMA’s Findings
The Commissioner found that the employee had been dishonest in his representations during disciplinary proceedings. The Commissioner found that dishonesty during disciplinary proceedings warranted dismissal as opposed to a final warning in order to deter others from committing the same offence, and to maintain the legitimacy of the disciplinary process.
Importance of Judgment
Honesty is an inherent requirement of an employment relationship and an employer should be able to rely on an employee’s honest testimony in disciplinary hearings.
Read more on how claims by employees for costs of Covid-19 tests cannot be referred to the CCMA.
by Jacques van Wyk, Director and Danelle Plaatjies, Candidate Attorney
Latest News
Blocking growth? Why the NCC’s Draft Opt-Out Registry Guidelines need revisiting | You were only given 15 days to comment – what are you doing?
by Ahmore Burger-Smidt, Director and Head of Regulatory, and Boitumelo Khwene, Candidate Attorney No one defends the spam caller. According [...]
Voting rights not afforded to post-commencement creditors
by Dr. Eric Levenstein, Director and Head of Insolvency & Business Rescue, Brandon Starr, Senior Associate, and Clio Patricios, Candidate [...]
The algorithm will see you now: Competition Regulators turn to AI to catch bid-riggers
by Ahmore Burger-Smidt, Director and Head of Regulatory, and Boitumelo Khwene, Candidate Attorney For decades, the detection of cartels has [...]
Fixing the aftermarket: What the Competition Commission’s new Repair Guidelines mean
by Ahmore Burger-Smidt, Director and Head of Regulatory If your business manufactures, distributes or repairs phones, appliances, medical devices or [...]
The Porsche that got away in business rescue
by Eric Levenstein, Director and Head of Insolvency & Business Rescue, Amy Mackechnie, Senior Associate, and Clio Patricios, Candidate Attorney [...]
Expressing Our Heritage Through Access to Justice
by Dakalo Singo, Director and Head of Pro Bono The Ties that Bind Us As South Africa commemorates Heritage Month [...]
