The answer is that retrenchment processes remain lengthy in order for parties to engage, and employers cannot retrench workers because they tested positive for Covid-19, according to labour lawyer and director of Lancaster Kungoane Attorneys Lerato Kungoane.
Kungoane provided some insight on PowerFM after an employee gave testimony on Tuesday of how they were allegedly retrenched after testing positive for Covid-19.
She confirmed employers are entitled to instruct employees to take Covid-19 tests before returning to work.
“The department of labour issued directives in terms of the Occupational Health and Safety Act. In terms of those directives, employers are obligated to request their employees take tests before they return to work.”
Outlining that the directive clearly stipulated that the employer must provide screenings for their employees, she noted that the employee’s work status could not be influenced by a Covid-19 positive result.
“If someone wants to fire someone on the basis of Covid-19 they have to follow an ill-health process, which is a lengthy process…”
She stated that were a number of options for retrenchment/termination, which included conduct, operational requirement or an ill-health process, and an employer could not opt for the ill-health option as that too led to a lengthy process where they would need to check if the employee’s condition was permanent or temporary.
In the case of the coronavirus, the condition is known to be a temporary illness, which cannot be grounds for dismissal.
On who should receive the test first once an employee has tested, she said the employee was the patient, therefore the first person to receive it. However, the employer was allowed to view the tests in order to remedy a way forward for the company should other measures need to be taken.