27 January 2022
The introduction of mandatory vaccination policies in various workplaces in South Africa have been welcomed by many and seen as a progressive approach to overcoming the pandemic and recovering the economy. There are however many individuals that are in strong opposition against the vaccine, going as far as expressly refusing to take the vaccine. What does this mean in the employment context and can an employer that has adopted a mandatory workplace vaccination policy, dismiss such an employee for refusing to adhere to the policy?
On 11 June 2021, the Department of Employment and Labour issued an updated occupational health and safety directive which, among other things, permits an employer to implement a mandatory workplace vaccination policy subject to specific guidelines.
The introduction of mandatory vaccination policies in the workplace of South Africa have been met with resistance by certain employees by virtue of a medical, constitutional, or other ground. These refusals are common and should be dealt with in the following manner:
• Establish on what grounds the employee is refusing.
• Counsel an employee and allow them to confer with a trade union representative, a worker representative or a member of the health and safety committee so as to come to a resolution.
• Refer the employee for further medical evaluation where the objection is on medical grounds. This will however require the consent of the employee.
• If necessary, take steps to reasonably accommodate the employee by making amendments to their role or work environment in one or more of the following ways: allow them to work from home where possible, require that they self-isolate in the workplace; or require the employee to wear an N95 mask while in the workplace.
There are however circumstances where an employee cannot be reasonably accommodated, and the employer’s operational requirements call for termination of the employee based on them not complying with the mandatory vaccination policy.
A very recent matter at the CCMA shows just how severe the implications can when an employee refuses to vaccinate against Covid-19. The commissioner dismissed an employee’s bid to challenge her dismissal on the grounds of incapacity.
The employee in question was employed by the Goldrush Group and in October 2021, she was dismissed due to her failing to comply with the employer’s mandatory workplace vaccination policy. There was no other position available in which the employee could be placed as the employee interacted with site owners and other employees on a regular basis.
The chairperson’s finding was such that the employee was permanently incapacitated based on her decision to not get vaccinated and her refusal to help create a safe working environment.
The employee was adamant that she had no intention to get vaccinated, despite the company’s vaccination policy.
The employee relied on her constitutional right to bodily integrity and that the Constitution provided that every person has the right to bodily and psychological integrity. Further, the employee maintained that no person should be denied the rights enshrined in the Constitution and that every person should have the right to make decisions regarding their health and medical interventions and treatment.
The employee argued that she had adhered to Covid-19 protocols and knew that she had not been infected with the coronavirus as well as that she had made her informed decision not to get vaccinated.
The employer in question implemented a thorough workplace assessment of Covid-19 risks and consulted widely with employees and trade unions before implementing the mandatory vaccination policy. The employer had further also allowed for a process where employees could apply to be exempted from the policy and justify why they should not be obliged to vaccinate. In the circumstances the employee did not apply for exemption and instead relied on her constitutional right to bodily integrity.
The Commissioner at the CCMA dismissed the employee’s submissions, finding that the employee was permanently incapacitated on the basis of her decision to not get vaccinated and by implication refusing to participate in the creation of a safe working environment. The employee’s dismissal was subsequently found substantively fair.
This recent case is extremely important as it gives much needed direction on how the dismissal of employees could be treated for failure to comply with mandatory vaccination policies. It should however be noted that our judicial system allows for rulings by the CCMA to go on review. There is a strong likelihood that this CCMA ruling will go on review at the Labour Court and might very well also go through to the Labour Appeal Court and end up at the Constitutional Court due to the merits of the case.
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Contact Invictus on 0861 737 263 for assistance with the introduction of mandatory vaccination policies, as well as advice on how to handle refusals to mandatory vaccinations, so we can ensure that you are properly equipped in dealing with the situation in a risk-free and compliant manner.
