COVID 19: Your choice – Your responsibility!

In a recent matter MISA was faced with the dismissal of a MISA member for inter alia breaching the Government Directives/Regulations relating to curfew as well as social distancing, self-isolation and the like. The question that was posed to MISA, ‘Is this fair?’

In other scenarios MISA was made aware of employees who visited friends/family over a weekend and who, later during the week, was made aware of the friends testing positive for COVID 19. These employees then continued working and informed their Employer only a day or three later when they themselves tested positive for COVID 19. My question, ‘Is this fair?’

The Regulations

The point of departure is to reconfirm that not only your employer, but you as employee is bound by the Disaster Management Act, 2002: Regulations issued in terms of section 27(2), as well as all amendments thereafter (Regulations). The most recent amendments signed on 11 January 2021 provides inter alia that:

• Curfew: every person is confined to his/her place of residence from 21H00 until 05H00 daily. There are exclusions such as medical emergencies or essential services. The Regulations goes as far as to state that “…Any person who fails to abide by the curfew…commits an offence and is, on conviction, liable to a fine or a period of imprisonment…” (Chapter 4 – paragraph 33).
• Employer: “An employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a face mask while performing his or her duties…” and “…must, adopt measures to promote physical distancing of employees…minimising the need for employees to be physically present at the workplace; the provision for adequate space; restrictions on face to face meetings; special measures for employees with known or disclosed health issue or comorbidities, or with any condition which may place such employees at a higher risk of complications or death if they are infected with COVID-19; special measures for employees above the age of 60 who are at a higher risk of complications or death if they are infected with COVID-19.” (Chapter 4 – paragraph 34 (5) & (8)).

Gross Negligence or not?

The authority that defines gross negligence is recorded by the Supreme Court of Appeal in Transnet Ltd t/a Portnet v The Owners of the MV Stella Tingas and the MV Atlantica 2003 (2) SA 473 (SCA) as follows: “to qualify as gross negligence the conduct in question… must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorized as extreme. It must demonstrate, where there is found to be conscious risk taking, a complete obtuseness of mind or, where there is no conscious risk taking, a total failure to take care.” (Own Emphasis)

When applying the above mentioned definition of gross negligence to conduct, such as visiting friends and family in a confined badly circulated building/venue, not keeping your distance, hugging and greeting with a kiss, driving around whilst self-isolating or being booked off as a result of testing positive, not declaring contact with someone who tested positive and then returning to work on a Monday morning, what will be the result?

The determining factor is the extreme departure from the standard of a reasonable person, a conscious risk taking…!

There is no secret, special or invisible protective shield over our private residences. We cannot go rogue in our families’, friends’ or our own place of residence, because it is not specifically mentioned or regulated in any of the Directives. We have a fiduciary duty towards our friends/family, our employers and our colleagues.

Consequences

Being tested positive for COVID-19 or being in contact with a person who tested positive might result in absence from work as a result of compulsory isolation or you may be booked off sick. Some employers introduced a policy that prescribes a 14-day self-isolation and others a 10-day self-isolation. The question is, do you have enough sick leave or annual leave available, or will this be unpaid leave? When it relates to a conscious disregard for safety as well as the Directives, unprotected interaction with family and friends outside the workplace might impact your income. Your choice, your responsibility!

The extreme is that when you as employee breach the Directives, Company Rules and Health protocols, your conduct might prove to be grossly negligent and you may be subject to disciplinary action and face possible dismissal.

Conclusion

MISA is the Intelligent Alternative, and being a member of MISA you should buy into intelligent decision making and conduct. Protect yourself! Protect your income! Protect your family and friends! Protect your employer! Do not let your risk taking behaviour result in dismissal or being out of pocket.

MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance during this time: