The question of adequate protection for essential service healthcare workers during the COVID-19 pandemic: The Labour Court analyses a trade union's complaints

NEHAWU claimed a shortage of PPE at particular hospitals across different provinces, but it made bald and unsubstantiated allegations that there was a complete lack of masks, gowns and latex gloves at various facilities, when in fact the necessary PPE was available and, where supplies were running down, orders had already been placed and replenishment was in progress. The type of equipment that NEHAWU claimed should be provided, such as N95 surgical masks for cleaners, was unnecessary as this is highly specialized PPE required by doctors and those nurses treating patients under intensive care with known symptoms of the virus. Cleaners are being provided with masks in the ordinary course, but these are not of a surgical mask standard because this was unnecessary except where such cleaners are carrying out their functions in very high risk areas. The allegations concerning a lack of PPE was dismissed by the Court. The Minister made plain that no person working in the health sector was being made to work without the requisite PPE for the circumstances. The Department of Health has issued appropriate instructions on the use of PPE. NEHAWU's was factually incorrect.

Another important finding of the Court was that NEHAWU had not established the existence of a legal duty or norm requiring the Minister to engage meaningfully with it. The Court noted that a refusal or failure to consult may be bad for "social partnership or human resources" reasons, but NEHAWU also could not prove that the Minister had failed to involve it in relevant discussions about this pandemic.

Pending meaningful engagement, NEHAWU asked for an order that its members not be disciplined for any refusal to carry out their duties due to a lack of PPE. There was no evidence that there had been any threat of discipline. The Court found that it cannot grant "a global ruling that employers cannot take disciplinary action against NEHAWU's members who refuse to treat patients because in their opinion they do not have appropriate PPE." Where the relief sought was abstract by nature it had to be dismissed on this ground alone.

NEHAWU also sought an order directing the Minister of Employment and Labour to issue a directive under the Occupational Health and Safety Act ("OHS Act") prohibiting the performance of those duties that endanger the health and safety of employees because of a failure to provide PPE.  The Court found that NEHAWU had misconceived the law as it should have been made such a compliant to the OHS Inspectorate so that the issues could be investigated. If after that any failings were brought to the attention of the Minister, he would have had the power to act appropriately after affording the relevant parties the opportunity to make written representations. 

The Court noted there is authority for the legal position that an employer would not be held liable under the OHS Act if the employer demonstrates that it has taken all reasonable steps to prevent harm from being suffered by its employees at the workplace. The Court does not have jurisdiction to directly enforce any of the general duties placed on employers under the OHS Act because it is not a court of first instance.

In awarding an unusual costs award the Labour Court indicated that : "…- under circumstances of a national disaster, everyone is called upon, for the good of society as a whole, to co-operate in bringing the pandemic under control. In short, a new value system on what constitutes acceptable behaviour has been thrust upon us all. This court is, of course, not in any position whatsoever to dictate that a spirit of co-operation must imbue how parties conduct themselves or express or advance their interests. But what the court can do is adjust the standard of what constitutes frivolous and vexatious conduct in litigation".

The Court has made a bold statement in favour of collaborative efforts in the fight against the pandemic. There was a clear endorsement of the need to co-operate and address such issues through the available, appropriate mechanisms.