When an employee signs their employment contract, there is often a confidentiality clause which states that the employee will refrain from disclosing any confidential information to any third party whilst in employment with their employer and after termination, unless the employer agrees to disclose such information with the employee. Should the employee breach this clause, it possibly may lead to disciplinary action against the employee.
But what happens when an employee informs the employer’s customers that the employer is showing signs of COVID-19? Is this a breach of confidentiality, or is this following COVID-19 protocol? Does the employer have the right to dismiss an employee for such actions?
In Sliedrecht / Mathonsi (2021) 30 CCMA 8.37.13 also reported at [2021] 6 BALR 669 (CCMA), an employee was dismissed for allegedly informing the employer’s patients that he was showing signs of COVID-19. The employer claimed that this action by the employee amounted to the breach of the confidentiality clause in the employee’s contract and defamation.
The employee’s reason for disclosing such information was that she was following the required COVID-19 protocol by reporting that the employer said he was feverish.
Defamation is a civil claim. The Commissioner had to establish whether the dismissal of the employee for such actions was fair. What the Commissioner had to consider was whether there was a rule that the employee breached.
It was common cause that the employer did inform the employee that he was suffering from symptoms that indicate a possible COVID-19 infection. No evidence proved the allegation by the employer that his business suffered reputational harm, and it was found that the employee was indeed following the required COVID-19 protocols.
Furthermore, the same applied to the supposed breach of confidentiality by the employee. The employer could not prove that the employee breached her employment contract as she was simply following the COVID-19 protocol.
The employee was still on probation and was not given a fair disciplinary hearing before being dismissed. Such dismissal was unfair, and the employee was afforded compensation of 4months’ salary.
The case mentioned above is a perfect example for employers to consider whether or not an employee has breached their contract or if they are merely following the required COVID-19 protocols.
COVID-19 has brought about many changes in the workplace, and should the above scenario occur within your workplace, it is best that the employee is given a fair disciplinary hearing before unjustly dismissing an employee. You cannot dismiss an employee for following COVID-19 protocols that have been implemented throughout the workplace.
Contact your SEESA Labour Legal Advisor to assist your business with any dismissal and COVID-19 related queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the Author:
Kayleigh Stanley started her career at SEESA in 2020 and is currently a Labour Legal Advisor at SEESA’s Durban office. She graduated with a BCOM Law degree as well as an LLB degree from the University of South Africa. She was admitted as an Attorney in 2017.
Resources: Recognition for this article is given to The Editor: IR Network LexisNexis case law Sliedrecht / Mathonsi – (2021) 30 CCMA 8.37.13 also reported at [2021] 6 BALR 669 (CCMA).