The CCMA first determined whether an employer may dismiss an employee based on incapacity in the matter of Theresa Mulderij v Goldrush Group, GAJB 24054-21. The CCMA found the dismissal of an employee due to her permanent incapacity to be fair and upheld the company’s dismissal. In this case, the employee was unvaccinated, and her refusal to be vaccinated was in contravention of the employer’s vaccination policy. The employee tendered that she had a Constitutional exemption to taking the vaccine and relied on Section 12(2) of the Constitution, which deals with the right to bodily and psychological integrity. The Commissioner ultimately refused to accept this argument because the employee interacted daily with colleagues in confined and uncontrolled spaces. The Commissioner, in conclusion, found that the employee was held to be permanently incapacitated based on her decision not to get vaccinated. This decision was, by implication, also a refusal to participate in creating a safe working environment.

In Dale Dreyden v Duncan Korabie Attorneys, WECT13114-21, the CCMA had to determine whether an employer may dismiss an employee due to operational requirements if an employee refuses to be vaccinated, in contravention of a company vaccination policy. The CCMA held that “each case must be decided on its own merits”. This is perhaps the single most important principle when deciding on the fairness of dismissal due to an employee’s refusal to be vaccinated. The following factors that must be considered include:

  • The size of the workplace;
  • The nature of the workplace;
  • The nature of the job;
  • Whether the job is performed outdoors;
  • Indoors or in close confines;
  • Ventilation in the workplace;
  • The degree of exposure to other employees, managers and owners; 
  • The age of other employees, managers and owners;
  • The reasons for an employee’s refusal to vaccinate;
  • The particular variant of COVID-19;
  • The state of disaster level in the country, if any at the time;
  • Any “waves” in the pandemic that the country is experiencing;
  • Whether work may be done from home;
  • Whether an employee who refuses to vaccinate can be accommodated.”
The CCMA found that in this matter, the Respondent’s (Korabie Attorneys) insistence on staff being vaccinated was reasonable and upheld the sanction of dismissal.

This principle was also confirmed in Cecelia Bessick v Baroque Medical Pty (Ltd), WECT13083-21. The CCMA held that the employer’s decision to dismiss an employee based on operational requirements due to the employee’s refusal to comply with the mandatory vaccination policy was fair. Furthermore, the CCMA found that the employee’s refusal to adhere to the employer’s mandatory vaccination policy was unreasonable. Therefore, the employee was not entitled to severance pay. The CCMA found that the company’s risk assessment and the mandatory vaccination policy met the requirements set out in the Disaster Management Act: Consolidated Coronavirus COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces. The CCMA further found that the employer had established a case and a clear business rationale for retrenching the employee. The employee essentially refused the vaccine based on personal, medical, and religious reasons and conceded that her bodily integrity was not affected as she had not taken the vaccine. The Commissioner held that “The Applicant had the election to vaccinate and retain her employment. On the facts, her refusal to vaccinate has no merit, and her refusal was unreasonable. It would be grossly unfair to expect the employer to pay any severance pay in the circumstances.”

It is thus clear from the above that a mandatory vaccination policy can be regarded as an operational requirement in a workplace. Non-compliance with the policy could also lead to incapacity, but it will depend on the unique nature of each business. Employers are thus encouraged to seek legal advice before taking action against employees for their refusal to comply with mandatory vaccination policies.

Article by: Chris Pio
Dispute Resolution Official – Pretoria