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Substantive fairness in dismissal

Ali / Rain (Pty) Ltd - (2022)31 CCMA 8.37.23 also reported at [2022] 7 BALR 698 (CCMA)

Subject matter classification:

Dismissal - Substantive fairness - Failure to comply with Covid-19 regulations - Employee not wearing face mask correctly or at all on several occasions despite warnings from safety marshal - Dismissal fair.

Mini Case Summary:

The applicant employee, an engineer, was dismissed for breaching the respondent's Covid-19 policy by failing to wear a face mask correctly or at all on several occasions. He admitted that he had done so but claimed that he was not endangering anybody and that several managers had also not worn face coverings but were not disciplined. The respondent contended that the employee was on final warning for the same offence at the time and he had acted defiantly when taken to task by the respondent's Covid-19 marshal. Other defaulting employees had been warned and had not repeated the offence.

The Commissioner found that the employee was aware of the health and safety rules then in place and had tried to grab the camera when the marshal had photographed him without a mask. While the employee had not been charged with that offence, the incident proved that he was not prepared to comply with the regulations, which made failure to heed an instruction to wear a face mask a criminal offence.

The employee's claim that he had been treated inconsistently was rejected and his dismissal was upheld.