The employee was charged with:
- Gross misconduct related to his alleged failure to disclose to the employer that he took a COVID-19 test and was waiting for his results;
- Gross negligence in that after receiving his COVID-19 test which he had failed to self-isolate, continued working and thus put the lives of his colleagues at risk. It was further alleged that during the period he had reported for duty, he failed to follow the health and safety protocols at the workplace, including failing to adhere to social distancing.
The employer had COVID-19 policies, procedures, rules and protocols in place, and all employees had been constantly reminded of these through memorandum and other various means of communications posted at points of entry and also through emails.
There was a rule in place that required employees to inform the employer when they suspected that they had been infected. In that rule was the need for employees to inform the employer of their COVID-19 tests.
The conduct of the employee of having reported for duty in circumstances where he knew of his positive test results and did not inform the employer of the test, walking around the employer’s premises without a mask, was extremely irresponsible in the context of the pandemic, and he was therefore grossly negligent.
Despite having stated that he had regard to all the provisions he had cited, it had clearly escaped the Commissioner’s reasoning that a disciplinary code and procedure, is not prescriptive as correctly pointed out on behalf of the employer, and that it is merely a guideline, insofar as issues of sanctions are concerned. The employee recklessly endangered not only the lives of his colleagues, and customers at the workplace, but also those of his close family members and other people he may have been in contact with.
The employee’s conduct was not only irresponsible and reckless, but also inconsiderate and nonchalant in the extreme. He had ignored all health and safety warning, advice, protocols, policies and procedures put in place at the workplace related to COVID-19, which he was aware of given his status not only as a manager but also part of the Coronavirus Site Committee.
The employee had failed to disclose his health condition over a period of time, sought to conceal the date upon which he had received his COVID-19 test results, and completely disregarded all existing health and safety protocols put in place not only for his own safety of his co-employees, and the employer’s customers.
Subsequent to a disciplinary hearing, employer’s decision to endorse the chairperson’s written findings and recommendation that the employee be summarily dismissed, was both substantively and procedurally fair.