CCMA just highlighteed the issue of employers that they give employees automatic and unfettered cheek using a Covid-19 pandemic as a tool against them.
Employers are now losing focus to the laws of labour and not obeying them. This highlight is made after a recent case heard at CCMA. CCMA is looking into the matter that employers needs to behave.
A case of Botha, sales executive was dismissed for cross insubordination and insolence after refusing to go to work during the Covid-19 lockdown in April 2020.
The CCMA commissioner found that the dismissal substantively fair but procedurally unfair. Botha was instructed to work during the high level of lockdown 5 as the company applied to the CIPC to work and list them essential workers.
Mr Botha refused and provided a laundry list of excuses as to why he could not attend work, these being, among other things, that he hadn’t been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he would not break the law.
CCMA found the excuses false, Cliffe Dekker Hofmyer gave the statement.
Item 3(5) of Schedule 8 states that “when deciding whether or not to impose the penalty of dismissal, the employer should in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances [including length of service, previous disciplinary record, and personal circumstances] the nature of the job and the circumstances of the infringement itself”. [Botha reportedly had a history of insubordination and insolence which contributed to the decision of dismissal.]
During the process, Botha failed to comply with the instructions to obey a lawful and reasonable. This made him to be of insolent and insubordinate by doing so, and that his dismissal was therefore substantively fair.
Furthermore, Botha was not given a chance to explain his actions to the instructions given. This made Botha’s case of dismissal to be found as procedural unfair. At least Botha is compensated a one month salary by his employer.