(Failure to wear your facial mask in the workplace during the COVID-19 pandemic).
During the course of 2020, employers, employees and the whole of South Africa was confronted by the worldwide COVID-19 pandemic. Various rules and regulations came into effect, including the requirement of using a facemask and to adhere to strict social distancing at all times.
In the workplace, the employer may frequently be confronted with situations where employees fail to wear their necessary personal protective equipment (PPE). This article advises the employer on how they may discipline an employee for such an offence.
The Occupation Health and Safety Act came into operation in 1993 and was specifically written and promulgated to address the principle of a safe and healthy working environment for all employees.
The biggest responsibility regarding the enforcement of the Health and Safety regulations rests on the employer, but the employee still has to take reasonable steps to take care of his/her own health and safety at work. An employee’s actions at work must not negatively impact or endanger any co-employee or any other person.
Section 14 (a) stipulates that every employee shall take reasonable care for the health and safety of himself/herself at work and any other person who may be affected by his/her acts or omissions.
Section 15 (1) stipulates that no person shall intentionally or recklessly interfere with, damage or misuse anything which is provided in the interest of health and safety.
In terms of Section 14, the employee has the following duties:
- Support and endorse SHE policies;
- Take ownership for own safety and the safety of others;
- Be observant;
- Report hazards and incidents;
- Attend training;
- Follow instructions;
- Co-operate with management;
- Comply with legislation.
An employee is bound to co-operate with the employer where the OHS Act imposes a duty or requirement to be performed or to be complied with.
In certain instances, both an employer and employee may be subject to penalties, including but not limited to:
- Imprisonment;
- An employee who willfully or recklessly does anything at the workplace which threatens the health and safety of any other person shall be guilty of an offence and might be held liable for a fine not exceeding R 50 000.00;
- An employer who does or omits to do an act is guilty of an offence of culpable homicide if that act caused the death of the said person, irrespective of whether or not the injury could have led to the death of such a person. On conviction the employer would be liable for a fine not exceeding R 100, 000.00 or for imprisonment for a period not exceeding 2 years;
- A compliance order may be issued;
- A company can also be shut down for failure to comply.
With regards to disciplinary action against an employee who contravened a rule, Schedule 8 of the Code of Good Practice stipulates that any person who is determining whether a dismissal for misconduct is unfair should consider the following:
- Whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to the workplace and;
- If the rule and standard was contravened, whether or not;
- Was a valid or reasonable rule or standard;
- The employee was aware, or could reasonably be expected to have been aware of the rule or standard;
- The rule or standard has been applied by the employer;
- The dismissal was the appropriate sanction for the contravention of the rule or standard.
In terms of the Code of Good Practice, dismissal must be seen as the last resort. A sanction of dismissal must be appropriate for the particular contravention of a rule or standard.
It is not standard practice to dismiss an employee for the first offence, except if the misconduct is serious and of such a nature that it makes a continued employment relationship intolerable.
A chairperson will consider the following factors when deciding on whether or not an employee should be dismissed for intentional/reckless interference with health and safety:
- There must be a clear and lawful instruction/rule;
- The employee is aware of the rule/the employee received proper training;
- The employee failed to follow the rule;
- The seriousness of the failure to follow.
Therefore, it is of the utmost importance to implement and enforce a comprehensive policy in the workplace regarding health and safety measures and to clearly state the consequences for non-compliance. This can be either progressive discipline or more severe disciplinary action. It is our advice that this offence should be treaded progressively starting with a verbal warning. However, if the offence for non-compliance had a clear impact on the company or directly endangered the safety of others, then more severe action will need to be taken. Actions can range from a final written warning to disciplinary action.
Contact your SEESA legal advisor to obtain the aforementioned policy and any other advice regarding health and safety measures.
About the author:
Anzel Raath started her career at SEESA in 2019 as a Labour Legal Advisor at SEESA’s Head office in Pretoria. She obtained her BA in Law in 2013 and her LLB in Law in 2017 at the University of Pretoria. Anzel was admitted as an Attorney of the High Court in 2019. She had practice 1 year in the field of Corporate and Commercial Law. In 2020 she also completed a course in Advanced Labour Law.
Resources:
The Occupation Health and Safety Act