The Labour Court in Cape Town has upheld the dismissal of a former Santam employee who refused to comply with the insurer’s Covid-19 workplace policy, finding that her dismissal for gross insubordination and dishonesty was both procedurally and substantively fair.
Acting Judge R Abrahams dismissed an application brought by A Richards to review and set aside a Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration award that had found her dismissal to be fair.
Richards had been employed by Santam as a service consultant since May 2014. Following the Covid-19 pandemic, Santam introduced a workplace policy requiring office-based employees returning to the workplace from 1 March 2022 either to be vaccinated or, if they chose not to be vaccinated, to submit regular negative PCR Covid-19 test results at their own expense.
Court papers show that Richards elected not to receive the Covid-19 vaccine and instead complied with the alternative requirement by submitting regular negative PCR test results during March and April 2022. At the same time, she applied for an exemption from the vaccination policy, but her application was rejected.
On 14 April 2022, Richards failed to submit a negative PCR test and did not report for duty the following day. She received a written warning valid for six months. After requesting to work remotely, similar to arrangements that had existed earlier in the pandemic, her request was declined because of Santam’s operational requirements.
Although she later resumed submitting negative PCR tests, Richards again failed to provide a negative test after 6 June 2022. She also stayed away from work between 7 and 14 June 2022 and failed to attend a disciplinary hearing scheduled for 15 June 2022.
On 17 June 2022, Santam issued her with a final written warning for failing to provide a PCR test, being absent from work without permission and failing to attend the disciplinary hearing.
The court noted that Santam subsequently informed employees on 24 June 2022 that negative PCR tests would no longer be required. However, Richards remained absent from work until at least 28 June 2022. She was later charged with gross insubordination for refusing to obey a lawful and reasonable instruction to return to work and with dishonesty.
Following a disciplinary enquiry, Richards was found guilty on both charges and dismissed. She unsuccessfully challenged the outcome at the CCMA before approaching the Labour Court to review the arbitration award.
In court, Richards argued that the commissioner had wrongly treated the matter as one of misconduct instead of incapacity. She contended that she could no longer afford the cost of regular PCR tests, meaning her failure to comply with the policy was neither deliberate nor wilful.
She further argued that the commissioner had incorrectly upheld the finding of dishonesty, maintaining that allegations she made against Santam regarding unfair treatment reflected her genuine beliefs rather than any intention to deceive.
The Labour Court rejected all three grounds of review.
Judge Abrahams found that Richards had failed to produce convincing evidence showing that her decision not to be vaccinated was based on a legally recognised incapacity or disability. Having voluntarily chosen the PCR testing option, her subsequent inability to pay for the tests did not convert the matter into one of incapacity.
The judge also found that Richards had accepted the vaccination policy and complied with it for a substantial period before later refusing to comply. While her inability to afford continued PCR testing was regrettable, the court held that it did not excuse her prolonged absence from work or her refusal to follow a lawful and reasonable workplace instruction.
The judgment concluded that the commissioner’s finding that Richards had committed gross insubordination was one that a reasonable decision-maker could reach on the available evidence.
Turning to the dishonesty charge, the court held that Richards had failed to substantiate her allegations that Santam had engaged in favouritism, discrimination, racial discrimination and other unfair workplace practices. In the absence of evidence supporting those claims, the commissioner had been entitled to conclude that she had acted dishonestly.
Finding no reviewable irregularity in the arbitration proceedings, the Labour Court dismissed Richards’ application and upheld the CCMA award confirming that her dismissal was fair.
The court made no order as to costs.
sinenhlanhla.masilela@iol.co.za
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