Two healthcare hospitality staff – fired for spontaneously hugging on Christmas Day 2020 after serving hospital patients – will have to wait to hear if they have been reinstated, as per an earlier court order, with back pay.
The Gqebera Labour Court had ordered that they be re-employed, with full back pay, after their dismissal for exchanging festive hugs and kisses on Christmas Day at the height of the pandemic.
The CCMA had previously earlier ruled their dismissals as substantively unfair, with the commissioner ordering their employer, the Empact Group, to reinstate them, with back pay.
But Empact turned to the Labour Court to overturn the CCMA’s findings.
The workers, identified only as Ms N Manoni and Ms A Cunningham, had worked at Netcare Greenacres Hospital in Gqebera as hostesses, serving food to ward patients, reports The Star.
On Christmas Day in 2020, at the end of their shift, they donned Christmas hats, threw caution to the social distancing winds and photographed themselves hugging and kissing in a festive spirit.
Unfortunately, their pictures were circulated on social media and seen by their employer, who feared reputational harm, and on 6 January 2021, they were dismissed for non-compliance with the Disaster Management Act and the risk that their conduct could lead to the cancellation of the contract between Empact and Netcare.
The company charged them with misconduct, and they faced a disciplinary inquiry.
While there was no dispute they had been trained on Covid protocols, and they admitted guilt, both asked for a written warning as a sanction.
However, they were dismissed.
The pair referred their dispute to the CCMA, and when conciliation was unsuccessful, the dispute proceeded to arbitration.
The arbitration commissioner found that their dismissals were procedurally fair, but substantively unfair, and ordered their reinstatement. The company was also ordered to fork out back pay.
The award was made in default as the company did not attend the hearing. Its HR representative emailed the CCMA and employees two days before the arbitration hearing, saying his witness was on maternity leave, and asking for the matter to be postponed until she was back.
The matter, however, proceeded in the absence of the company having any representation at the hearing.
Unhappy with the finding that it had to reinstate the pair, the company chose to review and set aside the award before the Labour Court.
Acting Judge D Norton said he was satisfied that the company has demonstrated good cause to reinstate the review. He said there was no reason why the arbitrator could not wait for the witness to return.
The judge said there was no reason not to believe the application for the CCMA proceedings to be postponed was not genuine, and that the witness was due back at work in about three weeks’ (from the date of proceedings), thus there was no need for a long wait before resolution of the issue.
He overturned the decision of the arbitrator and ordered that the matter must be decided afresh before a different commissioner.
The Star PressReader article – Kissing and hugging during pandemic carries a price tag (Open access)
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