The Covid-19 pandemic has sown fear and confusion. People have lost their jobs and others are scared to go to work and be with co-workers.

Can an employee reasonably refuse to work in an office or workplace? In the recent CCMA case of Botha v TVR Distribution, the CCMA found that if an employer issues a lawful and reasonable instruction, even during a pandemic, the employee is obliged to obey it and could face dismissal for failure to comply.

The commissioner had to decide on the fairness of Botha’s dismissal on the grounds of gross insubordination and insolence after refusing to attend work during the Covid-19 lockdown.

Botha’s employer had the required CIPC certificate to allow it to operate as an essential service during the lockdown. The employer ordered Botha to go to work but he refused, because he had not been provided personal protective equipment, that he had not been given a permit, and that the level 5 lockdown regulations did not permit him to work and he refused to break the law.

After hearing the evidence, the commissioner found that the dismissal was substantively fair but procedurally unfair. The commissioner found that the company had complied with all the disaster management health and other regulations to protect Botha, but he simply had no intention to attend work.

Regarding the evidence, various authors, and the Labour Relations Act (especially Schedule 8 Code of Good Practice: Dismissal) the commissioner found that an employee’s lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority; that Botha’s refusal to report for duty amounted to a failure to obey a lawful and reasonable instruction, he was insolent and insubordinate in doing so, and that his dismissal was therefore substantively fair.

The commissioner further ruled that as that the chairperson at Botha’s disciplinary hearing seemed to have prejudged the case and failed to allow Botha to provide mitigating factors for his conduct, the dismissal was not procedurally fair. Accordingly, the employer was ordered to pay one month’s salary to Botha as compensation.