Cape Times

Kissing and hugging during Covid-19 came with a price tag for joyous pair

KISSES and hugs on Christmas Day, during the height of Covid-19, came at a price for two women, both hospitalit­y workers at a hospital, after they were fired.

But the CCMA earlier ruled that their dismissals were substantiv­ely unfair. The commission­er ordered reinstatem­ent and back pay.

The Empact Group, which employed the two, was ordered to reinstate them, with back pay.

The company turned to the labour court sitting in Gqebera to overturn the CCMA’s findings.

The workers, only identified as Ms N Manoni and Ms A Cunningham, worked at Greenacres Hospital in Gqebera as hostesses, serving food to patients in the wards.

On Christmas Day in 2020, during the height of the Covid pandemic, at the end of their shift they donned Christmas hats, threw caution to the social distancing winds and took pictures of themselves hugging and kissing in a festive spirit.

Unfortunat­ely for them the pictures appeared on WhatsApp and Facebook, and their employer, upon seeing them, feared reputation­al harm.

On January 6, 2021, they were dismissed for non-compliance with the Disaster Management Act and the risk that their conduct could lead to the cancellati­on of the contract between the Empact Group and Netcare Greenacres Hospital.

The company charged them with misconduct, and they faced a disciplina­ry enquiry.

There was no dispute that they had been trained on Covid protocols, and they admitted guilt. Both asked for a written warning as a sanction, but they were dismissed.

The employees referred their dispute to the CCMA. Conciliati­on proved to be unsuccessf­ul and the dispute proceeded to arbitratio­n.

The arbitratio­n commission­er found that their dismissals were procedural­ly fair, but substantiv­ely unfair. The commission­er ordered their reinstatem­ent and the company was ordered to pay them back pay.

The award was made in default as the company did not attend the hearing. Its representa­tive – employed in human resources at the company – emailed the CCMA and employees two days before the arbitratio­n hearing, told them his witness was on maternity leave. He asked that the matter be postponed until she was back.

The matter, however, proceeded in the absence of the company having any representa­tion at the hearing.

Acting Judge D Norton said there was no reason why the arbitrator could not wait for the witness to return from maternity leave.

The judge said the company did issue a birth certificat­e, so there was no reason not to believe that its applicatio­n for the CCMA proceeding­s to be postponed, was not genuine. He also said that the witness was due back at work in about three weeks, thus there was no need for a long wait before the issues could have been resolved.

“I am also satisfied that the decision of the arbitrator to proceed on an unopposed basis was unreasonab­le and constitute­s a reviewable defect.”

The judge overturned the decision of the arbitrator and ordered that the matter must be decided afresh.