Mandatory Vaccination Policies are still a hot topic for discussion within the Labour Law sphere. Several notable cases have surfaced over the past year, which has drawn a fair amount of attention.
The matter which drew perhaps the most attention was the one of Theresa Mulderjj v Goldrush Group (GAJB 24054-21 – Dated 21 January 2022). Instead of going any further into this matter, which has already been discussed at length, I’d like to share the following article with readers, written by CEO’s own Daniel van der Merwe:
There have, however, been additional cases which haven’t caught the spotlight in the same manner that the Goldrush matter did. In a recent SASLAW webinar, Professor Alan Rycroft discussed a number of these cases.
In Gideon Kok v Ndaka Security (FSWK2448-21 – Dated 25 January 2022), the employee was not dismissed due to incapacity but rather suspended on full pay as he refused to vaccinate. The Commissioner in the CCMA held that the employer’s actions had amounted to a reasonably practical measure and that this measure was implemented to ensure a healthy and safe workplace. As a result, the suspension was upheld as it did not amount to an unfair labour practice.
Another case, Dale Dreyden v Duncan Korabie Attorneys (WECT13114-21 – Dated 7 March 2022), involved an employee who refused to vaccinate as he believed that the vaccine was, in fact, not a genuine vaccine and further relied on his right to bodily integrity. The employer and two further individuals in the office pertaining to the matter had comorbidity. Additionally to the facts of the case, staff were unable to work remotely. The employer, in this matter, failed to follow a pre-dismissal procedure. A simple email was sent to staff stating that those failing to vaccinate should not report for duty. The Commissioner in the CCMA, as one would guess, held that the dismissal was procedurally unfair but was indeed substantively fair.
While the above matters all unfolded in the CCMA, an interesting case found its way to the Labour Court. In Solidarity v Ernest Lowe, a trading division of Hudago Trading (Pty) Ltd (J49/22) ZALCJHB 14 March 2022, the employer did not introduce a mandatory vaccination policy but rather an admission policy, allowing access to the workplace only if an employee was able to produce proof of vaccination or, alternatively, a negative PCR test, not older than seven (7) days. The employee in this matter contested that the policy was unlawful and amounted to a breach of contract. However, the Court found that the admission policy did not amount to a mandatory vaccination policy and that the admission policy was neither unlawful nor did it amount to a breach of contract.
In summation, mandatory vaccination policies within labour law are still unchartered territory to a large extent. The future will undoubtedly see many more of these cases, which will hopefully result in more certainty pertaining to these disputes.
Article by: Wesley Field
Provincial Manager – Bloemfontein