DISMISSAL FOR NOT WEARING A MASK IS UNFAIR – COURT
A DISMISSAL should not be an expression of moral outrage or an act of vengeance, but rather should be a sensible operational response to risk management in the enterprise, the Johannesburg Labour Court said in a case where a worker was fired at the height of Covid-19 for not wearing his mask.
Ephraim Ramphabana was employed by a company called Penbro Kelnick as a stock controller. He was dismissed following a disciplinary enquiry into allegations of misconduct.
The allegations arose at the height of the Covid-19 pandemic in 2020. Ramphabana was issued with a final written warning for failing to wear his face mask at the workplace. He was again charged with dishonesty in that he lied to a senior manager, regarding not wearing his mask.
He was subsequently fired but the matter turned to the Commission for Conciliation, Mediation and Arbitration (CCMA) as he wanted his job back.
The commissioner had found that Ramphabana’s dismissal was substantively unfair, and had ordered his retrospective reinstatement, together with backpay in the amount of R284 569.68.
The company for which he worked turned to the Labour Court to have the findings of the CCMA overturned.
The incident leading to Ramphabana’s dismissal took place in June 2020. His supervisor was performing his rounds in the factory and had noticed Ramphabana at his desk, in the company of another employee. He was not wearing his mandatory face mask.
He was asked why he wasn’t wearing his face mask. According to his supervisor, Ramphabana lied to him in front of others, as he told him that he was eating. He also said that he had a chronic illness. But, according to the supervisor, there was no food in front of him.
The supervisor told Ramphabana that he was talking “s***” and told him to clock out and go home.
The head of the department suggested that Ramphabana should be issued with a final written warning as other workers had received this for similar infractions.
He was issued with a final written warning, as well as a notice to attend a disciplinary enquiry.
The head of the department told the court that he was upset with Ramphabana for not wearing his mask, especially since other employees who had tested positive for Covid-19 were being sent home.
According to the head of the department, the offence of not wearing a mask was serious, but was compounded by Ramphabana’s lies about why he was not wearing a mask. He was subsequently fired.
Ramphabana confirmed that his supervisor had approached him at his desk when he did not have his mask on. He said that he had explained to him that he was taking his medication for an injury he had sustained on duty and that he was due to eat after taking his medication.
The real issue, contrary to the applicant’s contentions, was not simply whether the respondent had lied when asked the reason why he was not wearing his mask. The principal enquiry was whether, from an assessment of the facts, it could be said that there was a fair reason to dismiss him, the court said.
Ramphabana was seen without a face mask at the workplace. For these types of transgressions, the offender would be issued with a final written warning.
Even if after the final written warning was issued, the manager had suddenly felt compelled to seek a harsher penalty against Ramphabana on the basis that the latter’s explanation for not wearing his face mask was untruthful.
The court said the question was whether, upon a consideration of fairness, a second hearing was justified.
Even if the court were to accept that the respondent had admitted that he made a mistake in not having his face mask on or had proffered an explanation which was considered as false and necessitating a further enquiry, this on its own did not justify a harsher sanction than he had already received.
A misconduct cannot be gross simply based on the subjective opinion or feelings of a manager, the court said.
It added that the misconduct could not be said to have harmed the business in any manner since employees were issued with final written warnings and permitted to return to work, notwithstanding the dangers of the Covid-19 pandemic at the time.
The Labour Court turned down the company’s application to have the CCMA award overturned, which means that it has to re-employ him, with backpay.
Pretoria News
2024-04-20T06:43:10Z dg43tfdfdgfd