Hilary Muza 
ZIMBABWE is making significant strides in dealing with the Covid-19 pandemic. The debate over employers’ and employees’ rights vis-à-vis vaccination, working from home and so on is still very much alive and concrete solutions are yet to be arrived at. 
The pandemic continues to shape how we work and as a means of coping, several measures have been imposed. Mandatory vaccination and working from home protocols are just a couple of examples of this.
However, we are yet to see the full impact of the pandemic on the types of labour disputes that can arise within the workplace. The law is designed to adapt to the times and cater for justice no matter the circumstances. Such a necessary adaptation happened after the judgment in Nyamande &
Another v ZUVA Petroleum (Pvt) Ltd SC 43/2015, when the legislature tempered the negative socio-economic effects of termination of employment on notice by introducing the Labour Amendment Act (No. 5) 2015.
The effect was a re-balancing (somewhat) of a lopsided power matrix between employers and employees. Now the world is faced with another extraordinary circumstance in the Covid-19 pandemic. This week, I will deal with two labour cases heard before the South African Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA is an independent authority that resolves labour disputes, and provides advice and training on labour relations.
In a case involving Eskort Limited, South Africa’s leading pork manufacturer, and one of its butchery staff, the Labour Court ruled that coming to work after testing positive for Covid-19 constituted gross misconduct and gross negligence, related to his failure to follow and/or observe Covid-19 related health and safety protocols put in place at the workplace. Eskort, upon discovering that the employee tested positive for Covid-19, terminated his employment because the manner in which he handled himself posed a risk to all other staff.
He was seen hugging other employees and walking around the workspace without a mask. The employee took the matter for arbitration before the CCMA, which found that he should only have been given a written warning. The case was taken on review to the Labour Court. A few key comments from the court are worth mentioning.
Defence of victimisation
In the face of the allegations against him, the employer claimed that he was dismissed on account of being victimised. This defence was dismissed as it should have but there is an important lesson for employees here. Where there is no express rule within the workplace that an employee must inform their employer that they have contracted Covid-19, employees nevertheless have a duty to inform their employers as soon as they discover their test results. The point is arguable that failure to do so constitutes gross misconduct and gross negligence, which can lead to dismissal.
Dismissal ordinarily follows gross negligence
The CCMA found that the employee’s conduct was “extremely irresponsible” and yet only ordered that he be given a written warning. That conclusion on its own should have justified the employee’s dismissal at arbitration stage. The penalty of a written warning is discretionary in terms of section 7 of the Labour (National Employment Code of Conduct) Regulations, 2006 published in SI 15/2006. This means that where a tribunal is satisfied that there has been gross negligence and/or incompetence, it has the option of dismissing the employee.
The employer’s responsibility
While employees have the duty to report their Covid-19 test results, employers also have the duty to ensure that the working environment is safe for employees to be in.
In another case before the CCMA, it was held that a lady who was absent from work for six days was within her rights to stay away because the working environment posed a risk to her health.
Her complaint was that Covid-19 particularly killed people with hypertension, diabetes and obesity. The CCMA found that the employer had not taken enough measures to ensure the safety of the employee and that her dismissal for absenteeism was unjustified.
Ultimately, it can be said that there are reciprocal duties on both ends of the spectrum. Employees have a duty to stay safe and advise, in quick time, if they have tested positive for Covid-19. On the other hand, employers have a duty to ensure that the working environment is safe for their employees.
The nature of Covid-19 related labour disputes will, in my view, focus on these concomitant duties between employer and employee. The one who wins is the party that proves, subject to the specific facts of the case, that they have taken the most cogent steps possible to prevent harm and still have faced prejudice.
I can say with confidence that the courts are prepared to deal with whatever nature of legal dispute is placed before them, but what is guaranteed is that as the world changes, the nature of human disputation changes. The law will always be applied to the facts as it is supposed to. It is the job of litigants (employers and employees alike) to make sure that they manage their circumstances to reduce exposure to liability. It is important for employers in particular, to be prepared for these changes, anticipate them and guard against any potential exposure.
n Muza is an admitted legal practitioner, conveyancer and notary public. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628.
