“Although we are nearing the tail-end of the Covid-pandemic, I still have a number of my employees that are refusing to come to work because of Covid-19. I’ve tolerated them being at home, but my problem is that there is very little work they can do from home, yet I have to pay them. Can I force them to come back?”
South African employers have been strongly encouraged to allow employees to work from home during the Covid-19 pandemic, where possible. Despite this, employees may still be required to report for duty by their employers especially when the employer has complied with the Covid-19 regulations applicable to the workplace.
According to the latest consolidated directions issued by the Minister of Employment and Labour to combat the spread of Covid-19 in certain workplaces, an employee may only refuse to come to work if there is a reasonable justification to believe that there are circumstances which pose an imminent and serious risk of exposure to Covid-19. This may be in instances where the employer has failed to provide a safe working environment by not providing for example facial masks, hand sanitizers, adequate social distancing or has failed to comply with any directive for occupational health and safety in the workplace.
The directions further require employers to adopt additional measures which are specific and appropriate to the needs of vulnerable employees. These may be employees who, because of their age or underlying health conditions, are considered to be at greater risk of complications or death should they contract Covid-19. Such employees must be allowed to come to work on occasional days or work from home should the nature of the work of their work permit.
What is clear though is that an employee has no absolute right to refuse to go to work especially when the employer has taken reasonable steps to ensure that the risk of spread of Covid-19 in the workplace has been reduced.
The Commission for Conciliation, Mediation and Arbitration (CCMA) recently had to deal with a question of whether it was fair for an employer to dismiss an employee for failure to report to work due to Covid-19. In this case, a sales executive had been charged and dismissed for gross insubordination for refusing to follow his employer’s instructions to report for duty during the so-called “Alert Level 5” lockdown. The employee had been informed by his supervisor that the company had applied for a certificate to enable it to continue its operations during the lockdown. Instead, the employee advanced various reasons why he was unable to come to work which reasons included not being provided with personal protective equipment and a work permit to travel to work.
The CCMA Commissioner found that the claims which had been advanced by the employee were false and unfounded as the employer had taken reasonable steps to alleviate the employee’s concerns. The dismissal of the employee was therefore found to be substantively fair but procedurally unfair as there existed a reasonable belief that the employee was not given an opportunity to advance mitigating factors prior to his dismissal.
The importance of this decision though is that it confirms that the Covid-19 pandemic does not give an employee a blanket right to refuse to come to work nor does it shield them from the consequences of their choices when they refuse to follow reasonable instructions from their employers. Equally so, employers remain duty-bound to follow fair procedures prior to dismissing employees and must ensure that they have taken the necessary Covid-19 precautions before insisting employees must attend work.