86 workers claim "unfair" suspension for absence after colleagues test positive for Covid-19

New Era’s parent company, Golden Era, issued suspension notices to 86 workers when they refused to work after at least 12 staff members tested positive for Covid-19. Photo: Supplied by CWAO

The workers have accused the company of purposely withholding information about outbreaks, forcing them to continue to work in “unsafe environments”.

According to the notices given to the workers, which GroundUp has seen, New Era’s parent company, Golden Era, stated that the refusal to work meant workers were participating in an unprotected strike and believed “the misconduct is serious enough to warrant dismissal”.

The company asked each employee to submit in writing their reason for absence which was to be brought to a disciplinary hearing scheduled for 17 June. Workers referred a case of unfair labour practice to the Commission for Conciliation, Mediation and Arbitration (CCMA) on 15 June.

We have not been able to confirm whether a hearing date has been set.

In a press statement on 10 June, the Casual Workers Advice Office (CWAO) accused New Era of hiding positive Covid-19 cases from workers. The statement said the workers had a meeting where they noticed that some staff were not present. “Workers found out that those missing had all tested positive. They promptly demanded that production stop until the workplace was safe,” reads the statement. It is believed about 12 staff members tested positive.

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Jacob Potlaki, an organiser at CWAO, said the 86 workers then decided to go home. He said the workers demanded that the company be shut down for three days to be cleaned.

“Management then informed the workers that the place was sterilised over the weekend but many workers were there over the weekend to be tested and said they didn’t see any sterilising taking place,” said Potlaki.

Virginia Olyn, who has worked as a cleaner at New Era for four years, is one of the workers with Covid-19. She was not sent for testing with the rest of the management staff.

“I work with everyone in the company, both management and the other workers. But I was only told that I needed to go for testing once the management staff were confirmed positive,” she said. Olyn said she received her positive result and was told to self-isolate at home.

“I told them that I’m sharing a yard with ten other people and we share one toilet so I can’t self isolate at home because I will put them at risk. I asked whether the company can do anything for me but they said there is nothing they can do,” she said.

The Occupational Health and Safety directives gazetted by the Department of Labour on 3 June said employees may refuse to work if they have reason to believe that there is imminent and serious risk of exposure to Covid-19. This applies even if the employee has not used internal or external processes before refusing to work.

“No person may threaten to take any action against a person because that person has exercised or intends to exercise the right [to refuse to work] … No employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform any work,” read the directives.

The directives state that employers have to ensure social distancing of at least 1.5 meters between workers where it is not possible to ensure that separators are used. Employers must provide workers with masks, sanitising facilities and screen workers before starting work every morning. The workplace needs to be sanitised regularly and must be ventilated.

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Olyn confirmed that New Era checked their temperatures every morning, provided masks and the cleaners sanitised the facility every two hours.

In a separate statement by CWAO on 15 June, the organisation criticised the new directives, saying it made it more difficult for workers to know whether Covid-19 was present in their workplace.

“Now the country’s insufficient testing capacity is being used to justify new regulations that (a) force workers who have tested positive back into workplaces faster, and (b) remove the obligation on employers to send symptomatic workers for testing,” read the statement.

Labour lawyer at the University of Cape Town, Halton Cheadle, said that the refusal to work by employees could not be classified as a strike because employees were within their rights if the employer had not met its health and safety obligations.

He said while there was no obligation under the directives for employers to inform employees of positive cases, “section 13 of the Occupational Health and Safety Act requires the employer to inform a health and safety representative of any incident – an incident including falling ill to such a degree that the worker is off work for 14 days”.

Employees who have been dismissed or disciplined for refusing to work can refer the case to the CCMA or a bargaining council for conciliation and arbitration where an arbitrator will be the objective body that will determine whether the employer failed to meet its safety obligation, said Cheadle.

New Era did not respond to questions sent to the company by GroundUp, even after committing to respond on Friday, 19 June. Numerous calls, WhatsApp messages and emails went unanswered.