Davies Ndumiso Sibanda, Labour Matters
WHILE many employees have breached Covid-19 rules and employers have not done anything, such employees run the risk of being disciplined for breach of express and implied Covid-19 rules.
The Employment Code of Conduct can be used against employees who breach Covid-19 rules that have been expressly given either by the state or employer. Whether the employee may be dismissed for breach of Covid-19 rules will depend on the circumstances of each case.
In existing codes of conduct, the breach of Covid-19 rules is likely to fall under offences related to breach of safety rules, failure to follow lawful instructions or act inconsistent with express or implied conditions of one’s contract.
I am of the opinion that the magnitude of the breach could be one of the factors to consider when disciplining an employee who has breached Covid-19 rules. The penalties can range from a verbal warning to dismissal in cases where the employers view the misconduct as going to the root of the relationship.
Where there is evidence that the employees knew the Covid-19 rules, they were briefed in detail, they were trained and there are notices on the notice board, it can be very difficult for workers to successfully argue ignorance of the rules. Further, there are cases where the employee cannot plead ignorance, for example, failure to put on a face mask at work cannot be justified. There is a reasonable expectation that impliedly, all employees should know that they have to put on masks.
Workers are advised to familiarise themselves with all the Covid-19 rules applicable at their workplace and live by the rules. They can even ask the employer to come up with a clear policy so as to minimise confusion.
There is also outside work activities that could result in an employee being disciplined. For example, an employee who conceals that those who live with him/ her have Covid-19 and continue to report for duty at an institution catering for the elderly, such conduct goes to the root of the relationship and may lead to dismissal of the employee as he or she would have put the elderly at risk.
Any attendance at work after exposure to Covid-19 will lead to disciplinary action if it can be proved that after knowing of the exposure the employee did not isolate and disclose to the employer.
Another case is where an employee deliberately attends an illegal super spreader event and catches Covid-19, thus, missing work and disrupts the employer’s business. In such cases, the employer is within his rights to discipline the employee.
There are also borderline cases such as that of an employee posting a picture of himself attending an illegal Covid-19 super spreader event and his attendance is linked to the employer thus compromising the employer’s image and as such can attract disciplinary action.
In conclusion, we are likely to see more cases related to Covid-19 workplace rules breaches going through the courts and as such the best workers can do to save jobs is to play by the rules.
-Davies Ndumiso Sibanda can be contacted on email: [email protected]