The Labour Court in Cape Town has dismissed a former Santam employee’s bid to overturn a CCMA award that upheld her dismissal after she failed to comply with the insurer’s Covid-19 return-to-work requirements and remained absent from work.
Although the dispute arose from Santam’s Covid-19 vaccination policy, the Court agreed with the commissioner that the employee had not been dismissed for refusing vaccination. Instead, it upheld the finding that her dismissal followed her failure, despite a final written warning, to comply with Santam’s return-to-work requirements, her continued unauthorised absence from work, and findings that she had been grossly insubordinate and dishonest.
Aurelia Somora Richards, a service consultant employed by Santam since 2014, was among office-based employees required to return permanently to the workplace from 1 March 2022 after staff had initially worked remotely during the pandemic.
Under Santam’s vaccination policy, office-based employees required to return to the workplace had to either be vaccinated against Covid-19 or submit regular negative PCR test results if they chose not to be vaccinated. Richards chose the latter option while applying unsuccessfully for an exemption from the policy.
She complied with the testing requirement for several months before failing to submit a negative PCR test on 14 April 2022 and not reporting for work the following day. She received a written warning, valid for six months. After asking to work remotely or return to the rotational work arrangement used earlier in the pandemic, her request was declined because of Santam’s operational requirements.
Richards subsequently resumed submitting negative PCR tests but again failed to provide one after 6 June 2022. She later said she could no longer afford the tests, which cost R150 each. She also remained absent from work between 7 and 14 June 2022 and did not attend a disciplinary hearing scheduled for 15 June 2022.
Richards received a final written warning on 17 June 2022 for failing to submit a PCR test, failing to report for duty from 7 to 14 June, and failing to attend the disciplinary hearing.
Santam notified employees on 24 June 2022 that negative PCR tests would no longer be required, but Richards appears to have remained absent until at least 28 June. On 8 July 2022, she was issued with a notice to attend a disciplinary inquiry.
She was subsequently dismissed with effect from 30 August 2022 after being found guilty of gross insubordination, unauthorised absence, and dishonesty.
The CCMA found the dismissal to be fair.
Richards then applied to the Labour Court to review and set aside the arbitration award on three grounds. She argued that the commissioner had wrongly characterised the matter as one of misconduct rather than incapacity; that, even if misconduct was the correct framework, her failure to comply was not wilful because she could no longer afford the PCR tests; and that the finding of dishonesty could not stand because she had no intention to deceive.
Acting Judge Rudi Abrahams noted that the question before the Court was whether the commissioner considered the principal issues, evaluated the evidence, and reached a conclusion that a reasonable decision-maker could have reached.
Misconduct, not incapacity
Richards argued that once she could no longer afford the PCR tests required as an alternative to vaccination, she had become incapable of complying with Santam’s policy and should therefore have been dealt with under incapacity procedures rather than disciplined for misconduct.
The Court rejected that argument. It held that Richards’s financial inability to pay for PCR tests, although regrettable, did not amount to the type of incapacity contemplated by the Code of Good Practice: Managing Exposure to SARS-CoV-2 in the Workplace, nor did it constitute a disability under the Employment Equity Act. The commissioner had therefore been correct to characterise the dispute as one of misconduct rather than incapacity.
Abrahams AJ observed that even if the commissioner had treated the matter as one of incapacity, the facts suggested dismissal on that basis would also have been justified. But the Court’s finding was that the commissioner had not erred by treating the dispute as misconduct: Richards was not dismissed for refusing vaccination, and her later inability to pay for PCR tests did not convert the matter into incapacity.
The Court also noted that Richards was aware of the policy and did not dispute its lawfulness, applicability, or reasonableness.
Richards relied on her Christian beliefs to justify refusing vaccination, and Abrahams AJ said there was no reason to doubt the sincerity of those beliefs. However, she had failed to provide convincing evidence that Christianity prohibited vaccination, with the result that her objection on constitutional grounds could not be sustained.
Gross insubordination
The commissioner treated the allegations of gross insubordination and unauthorised absence as resting on the same factual basis. He also found that the period from 6 to 16 June 2022 had already been dealt with by the final written warning issued on 17 June, leaving Richards’s conduct after that date as the central issue.
The Court found that Richards did not present herself for duty between 17 and 28 June 2022, even if only to be refused entry. In the circumstances, the commissioner could reasonably conclude that she had knowingly failed to comply with a valid and reasonable instruction to return to work and that her conduct was wilful, persistent, and amounted to gross insubordination.
Dishonesty
Richards also challenged the commissioner’s finding that she had acted dishonestly. She argued that even if the allegations she made in a CCMA referral proved to be incorrect, dishonesty required an intention to deceive.
The Court accepted that an allegation may be untrue without necessarily being dishonest because dishonesty requires intention. However, it held that, on the facts before the commissioner, that distinction ultimately made no difference.
It said Richards had made serious allegations of favouritism, inconsistent application of the vaccination policy, discrimination, racial discrimination, unfair treatment, and abusive workplace practices, yet failed to substantiate any of them during the arbitration.
The Court held that, on the evidence before the commissioner, it was reasonably open to conclude that the allegations had been made for no purpose other than to advance her case against Santam. The finding of dishonesty was therefore one that a reasonable decision-maker could reach.
Having rejected all three review grounds, the Labour Court dismissed Richards’s application and made no order as to costs.
Click here to download the judgment.
