The dismissal of a man fired after spitting at a nurse – while he was awaiting the results of a Covid-19 test – has been ruled fair by the Labour Court in Gqebera.
The tow truck driver was fired after a disciplinary hearing but initially took the case to arbitration, where a commissioner had ruled it was substantively and procedurally unfair. He then took the matter to the Labour Court to have those findings overturned.
This week, it was reasoned that Thembalukhe Diamond knew that his employer, DHL Supply Chain, had a policy in place during 2020 that employees who had Covid, or suspected that they had it, should isolate themselves at home, The Star reports.
DHL argued that the driver knew very well that the company was committed to keeping other employees safe by not allowing anyone with Covid, or who might have it, back at work until they were better.
In its ruling, the Labour Court said a dismissal cannot be unfair if an employee knowingly and deliberately exposed others at his work to the potentially deadly virus.
Diamond had got sick in July 2020 and been booked off by a doctor three days afterwards. But as his health did not improve, he took a Covid test. While still awaiting these results, he returned to work three days after taking the test.
He could not gain access to the office as his clock card had been blocked. A security guard told him to go to the company’s clinic.
According to DHL, there was an “unpleasant” exchange between Diamond and the nurse at the clinic, when Diamond allegedly spat at her.
This was denied by Diamond, who explained that upon request from the nurse, he completed the Covid-19 questionnaire. He admitted he had body pain and that he had attended a group gathering in the previous 14 days but insisted he had self-isolated for a period.
The company subsequently took disciplinary action against him and decided to fire him.
The commissioner concluded that Diamond did not breach a rule punishable by dismissal.
Judge Zolashe Lallie commented that when Diamond did not get better, he went for a Covid-19 test. Yet he went to work before receiving the results, thus knowing he was endangering the lives of others at work.
The gravity of the employee’s misconduct … should not have been underestimated by the commissioner, the judge said. It could not be unfair to dismiss an employee who knowingly and deliberately exposed others at the workplace to a deadly virus.
See more from MedicalBrief archives:
CCMA victory for employee dismissed over vaccine refusal
Labour Court orders dismissal of ‘reckless’ worker who defied COVID-19 regulations
COVID-19 regulatory contradictions: Employers should take conservative approach