Going to the workplace during the pandemic – the fine line between when employees should and shouldn’t be attending at the workplace during lockdown

• Africa

• Employment law - Business and human rights

03-08-2021

Following the national state of disaster declared in early 2020, owing to the Covid-19 pandemic, the government has been encouraging employers to allow employees to work from home. However, there appears to be a rise in the number of employers who are expecting employees to fulfil their employment duties from the workplace as opposed to their homes (especially when the country moves to a lower Alert level and restrictions are eased).

The growing call to return to workplaces has left some employees facing a difficult question: do they really have to return to their workplaces if their employment duties can be fulfilled from home, where they will feel safer and face a lower prospect of contracting Covid-19?

When you should be going to work

There are very few industries (nightclubs being one example) where employers are explicitly prohibited from requiring their employees to attend at the workplace. The current adjusted Alert Level 3 Disaster Management Regulations make provision for the operation of our economic sector and on this basis, permits workplace gatherings subject to: (i) the strict adherence of all health protocols (ii) the implementation of social distancing measures and (iii) the adherence to sector specific protocols.

In the case of Botha v TVR Distribution, the CCMA reaffirmed the principle that employees had a common law duty to render services to their employees and further confirmed that the dismissal of an employee who refused to attend at his workplace during the lockdown was substantively fair. Covid-19 does not simply exempt employees from obeying the lawful and reasonable instructions of their employers.

In short, if employers are adhering to the necessary rules and regulations, their instruction to employees to attend at the workplace will be regarded as a lawful and reasonable instruction. The refusal to comply therewith may be regarded as an offence giving rise to disciplinary action.

When you should not be going to work

Despite the above, there will be circumstances when employees simply may not leave their places of residence, let alone attend at the workplace, despite what employers may require or instruct. This will occur if: (i) employees have tested positive for Covid-19 (ii) employees have been in direct contact with someone who has tested positive for Covid-19 and (iii) if there are reasonable grounds for employees to suspect that you have been infected or contaminated with Covid-19.

The Labour Court in Eskort Limited v Mogotsi and others reiterated the importance of both employers and employees alike adhering to the measures in place to mitigate the effects of the pandemic and spread of the Covid-19 virus. The court held that the dismissal of an employee who attended at the workplace after receiving a positive Covid-19 test result, who did not notify his employer that he had tested positive and who also conducted himself recklessly (i.e. not wearing a mask and hugging other employees) was fair.

The adherence to obligations arising from an employment relationship can be challenging in ordinary circumstances. The advent of the pandemic, however, has given rise to new challenges to the relationship, which need to be carefully navigated by both the parties. Parties will now need to perform somewhat of a balancing act and maintain both a healthy and successful employment relationship, while at the same time complying with the measures which have been put in place in order to mitigate the effects of the Covid-19 pandemic.

Written by: Kathleen Butler, Trainee Associate