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Lessons from Abroad: Constructive Dismissal, Remote Working and Health and Safety Concerns 

by Brian Patterson, Jessie Moore

Published: June, 2021

Submission: June, 2021

 



 With the third wave of COVID-19 in full swing in South Africa, it has never been more important for South African employers to anticipate and prepare for the various COVID-19 related disputes that may lie ahead. It is vital to learn from the challenges already confronted by employers worldwide concerning issues such as vaccination, occupational health and safety, and flexible working arrangements and their approaches to such matters.

A recent decision by the Irish Workplace Relations Commission ("WRC") regarding a constructive dismissal dispute (involving a remote working prohibition and occupational health and safety concerns) provides many valuable insights for South African employers who may encounter these and similar issues as the pandemic runs its course. We discuss the facts and key take aways below.


The facts in a nutshell


In this case, the complainant was a former student accommodation manager operations coordinator at a university. She alleged that her employer (a facilities management service provider) had constructively dismissed her by not allowing her to work from home during the lockdown and failed to address her COVID-19 related health and safety concerns about the workplace.


The complainant had requested to work from home several days a week in rotation with two other accommodation managers to mitigate the risk of COVID-19 transmission on those days. Her employer rejected this request, claiming that she was always required on site. The employee had alerted her line manager numerous times to the fact that she lived with clinically vulnerable relatives, "but nothing was done about it and zero care and consideration was given back". The complainant resigned and lodged an unfair dismissal claim.


The WRC ruled that the complainant was unfairly dismissed, and the employer was ordered to pay compensation amounting to EUR3 712.50. Notably, the WRC found that the employer had acted unreasonably in refusing the employee's request in that:


  • the employee's role involved some project management that could be performed online from home;
  • the workplace was less busy with fewer students, and there was no summer season. Consequently, the essential on-site nature of the employee's role was covered by the rotation of operations coordinators;
  • the employee's proposal was not trialled to ascertain whether it was a workable solution; and
  • the end client (the university) had not complained about the suggested working arrangements and had even provided the employee with a laptop to facilitate the remote working.

The WRC also ruled that the employer's provision of personal protective equipment was not an alternative to mitigating the risk of COVID-19 infection that working from home would provide. "The most effective way to address a risk is to eliminate it, followed by substitution, then by engineering or administrative controls", the WRC held.


The WRC further found that the employer's requirement that the employee attends the workplace without adequate consideration of the elimination of COVID-19 risk "amounts to repudiation of contract".


Importance of context and balancing rights


At its core, this case demonstrates that context and a delicate balancing of competing rights and obligations is key to many of the COVID-19 related challenges that employers may face or are facing worldwide. The WRC ruling itself states that "this case does not relate to a general right to work from home or to work remotely. It relates to the circumstances of the COVID-19 pandemic." The WRC might have decided otherwise if the facts before it were different.


Vaccination


Various constitutional rights may be involved when considering the vaccination of employees. The most important of these are the right to equality, the right to dignity, the right to bodily and psychological integrity, freedom of religion, belief and opinion, and fair labour practices.


Employers are also required to provide and maintain, as far as reasonably practical, a working environment that is safe and without risks to workers' health and to take such steps as may be reasonably practicable to eliminate or mitigate a hazard or potential hazard in the workplace. A hazard would likely include COVID-19.


On the other hand, an employee is obliged (amongst other things): to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions; carry out any lawful order given to them; and, obey the health and safety rules and procedures laid down by their employer or by anyone authorised by their employer, in the interest of health or safety.


Employers will need to balance, and give due regard to these obligations and rights and take employees' well-founded objections seriously. A context-sensitive risk assessment and the accommodation of employees are essential and may differ from employer to employer.


Generally, any decision regarding the vaccination of an employee must also take into account:


  • the hazards associated with administering the vaccination to an employee or groups of employees;
  • the degree of likelihood that the vaccination will impact the health of an employee (or employees) or other persons in the workplace;
  • what reasonably practicable steps can be taken to avoid or mitigate the risks associated with administering the vaccination; and
  • the impact on the workplace and the employees working there of the refusal of an employee or employees to be vaccinated.

Flexible working policy


Context and a balanced approach are equally important when implementing a flexible working policy. While there are many benefits and shortfalls to remote working, there is no one-size-fits-all solution. There are various considerations and risks that employers must appreciate in this respect.


A remote working policy would need to be implemented following the principles of fairness because it is capable of being challenged by invoking the unfair labour practice provision set out in the Labour Relations Act, 1995 (the “LRA"). A "benefit" includes that to which the employee is entitled (in terms of a contract or in terms of the law), as well as an advantage or privilege which the employee has been offered or granted in terms of a policy or practice, subject to the employer's discretion. Accordingly, permission to work from home would likely be viewed as a benefit, and it will need to be applied fairly to pass muster under the LRA.


To guard against this, in granting permission to employees to work from home, employers will need to ensure that there are fair and objective criteria put in place to guide the supervisors in deciding whether or not to grant the employees the requisite permission to work from home and/or the number of days they will be permitted to do so.


For instance, following the approach of the WRC in Ireland, supervisors may be guided by the degree to which the employee can fulfil their employment obligations optimally from home for the period in question. In addition to the above, employers would need to be cognisant of the other imperatives implicated in implementing such policies, such as health and safety concerns, data protection, and confidentiality.


The risk of COVID-19 related constructive dismissal


Another key take away from the WRC case is that employers must appreciate the risk of constructive dismissal claims arising out of their (improper) management of COVID-19 and issues arising therefrom.


In South Africa, the test for constructive dismissal does not require that the employee have no choice but to resign, but only that the employer should have made continued employment intolerable, judged objectively.


Depending on the circumstances (such as the nature of an employee's role, the type of workplace, health and safety concerns, etc.), it is conceivable that a resignation pursuant to a refusal to work remotely, a failure to adhere to health and safety obligations and/or the unfair implementation of a vaccination policy may well render continued employment intolerable and present a risk of a constructive dismissal claim. Employers should not compromise on fairness and should seek proper legal advice to these challenges from their legal practitioner of choice.


 


 


 



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