Nicol Myburgh, Head of the HCM Business Unit at CRS Technologies, discusses the circumstances that may arise where refusing to work is believed to be the only safe option available.
“From a legal perspective, an employee may refuse to perform any work if circumstances arise which, with reasonable justification, appear to pose an imminent and serious risk of their exposure to the coronavirus,” says Myburgh.
Of course, this does not absolve employees of their responsibility to follow proper protocol, he says. “An employee who has refused to return to work must, as soon as it is reasonably practicable, notify the employer either personally or through a health and safety representative of their refusal to come to work, and provide their reasons.”
The employer must then consult with the compliance officer and any health and safety committee and endeavour to resolve any issue that may arise from the exercise of this right. Fundamentally, no person may threaten to take any action against an employee because that person has exercised or intends to exercise the right to refuse to work for a justifiable reason.
“This means that the organisation cannot dismiss, discipline, prejudice, or harass someone for refusing to perform any work if it complies with the just cause requirement. If there is a dispute, the employee may refer it to the Commission for Conciliation, Mediation, and Arbitration (CCMA) or an accredited bargaining council for conciliation and arbitration,” he says.
There is a risk that employees will seek to take advantage of the situation and Myburgh says the regulations seem to imply that employers have no recourse. “Fortunately, they do. The important sections in the regulations are ‘reasonable justification’ and ‘an imminent and serious risk of their exposure to COVID-19’. This makes it extremely difficult for an employee to take advantage of the situation when their employer has taken all reasonable safety steps and implemented all reasonable measures.”
If an employee refuses to go to work based on some nonsensical reason, nothing prohibits the employer from taking the necessary disciplinary steps.
According to Myburgh, the employer can choose from a range of options. These include disciplinary action (in the case of an employee not showing up, insubordination, dereliction of duty, or something similar) to dismissal based on operational requirements (commonly referred to as retrenchment).
“Fundamentally, an employer must ensure that it has complied with all the necessary health and safety regulations. If this has been done and an employee still refuses to come to work due to their perceived risk of contracting COVID-19, it would effectively render further employment operationally intolerable and likely end with a dismissal based on operational requirements,” concludes Myburgh.