The Labour Court in Cape Town upheld the decision to dismiss a former Santam employee who refused to comply with the company's Covid-19 workplace policy. The court ruled that her dismissal was both procedurally and substantively fair, as it related to gross insubordination and dishonesty.
Judge R Abrahamse dismissed the appeal lodged by A Richards, which sought to review and overturn the arbitration ruling of the Commission for Conciliation, Mediation and Arbitration (CCMA), which had initially found her dismissal justified.
Richards worked at Santam as a service consultant starting in May 2014. Following the onset of the Covid-19 pandemic, Santam implemented a workplace policy requiring employees working in the office and returning to work from March 1, 2022, to either be vaccinated or, if they refused vaccination, provide regular negative Covid-19 PCR test results at their own expense.
According to court documents, Richards decided not to receive the Covid-19 vaccine and instead complied with the alternative requirement by providing regular negative PCR tests during March and April 2022. She also submitted an application for exemption from the vaccination policy, which was rejected.
On April 14, 2022, Richards failed to provide a negative PCR test and did not report to work the following day. She was issued a written warning valid for six months. When she requested to work remotely, similar to previous arrangements during the pandemic, her request was denied due to Santam's operational needs.
Although she later resumed providing negative PCR tests, Richards again failed to provide a negative test after June 6, 2022. Furthermore, she was absent from work from June 7 to June 14, 2022, and did not attend the disciplinary hearing scheduled for June 15, 2022.
On June 17, 2022, Santam issued her a final written warning for failing to provide a PCR test, unauthorized absence, and non-attendance at the disciplinary hearing. The court noted that Santam subsequently notified employees on June 24, 2022, that negative PCR tests would no longer be required. Nevertheless, Richards continued to be absent from work until at least June 28, 2022. She was later charged with gross insubordination for refusing to comply with a lawful and reasonable requirement to return to work, as well as dishonesty.
Following the disciplinary investigation, Richards was found guilty of both charges and dismissed. She unsuccessfully challenged this outcome at the CCMA before appealing to the Labour Court to review the arbitration decision. In court, Richards argued that the commissioner had wrongly treated the matter as a breach of labour discipline rather than an inability to perform the job. She insisted that she could no longer afford the costs of regular PCR tests, meaning her non-compliance was neither intentional nor malicious.
She also contended that the commissioner improperly supported the finding of dishonesty, asserting that the complaints she made against Santam regarding unfair treatment reflected her genuine beliefs, not an intent to mislead. The Labour Court rejected all three grounds for review.
Judge Abrahamse found that Richards failed to present convincing evidence showing that her decision to refuse vaccination was based on a legally recognized incapacity or disability. Since she voluntarily chose the testing option, her subsequent inability to pay for tests did not transform the matter into one of incapacity. The judge also concluded that Richards adopted the vaccination policy and complied with it for a significant period before refusing compliance. While her inability to afford ongoing PCR testing was regrettable, the court held that this did not justify her prolonged absence from work or refusal to follow a lawful and reasonable workplace requirement. The court's decision was that the commissioner's finding that Richards committed gross insubordination was one that a reasonable person, possessing available evidence, could have reached.
Regarding the charge of dishonesty, the court ruled that Richards failed to substantiate her claims that Santam engaged in favouritism, discrimination, racial discrimination, and other unfair workplace practices. In the absence of evidence supporting these allegations, the commissioner was entitled to conclude that she acted dishonestly. As no irregularities were found during the arbitration proceedings, the Labour Court dismissed Richards' application and upheld the CCMA's decision regarding the fairness of her dismissal. The court did not issue an award for compensation.
