The conundrum currently facing employers is employee’s safety and the assurance that productivity continues in these trying times. Our President, Cyril Ramaphosa, advised that there will not be mandatory vaccinations, but that has not been the reality on the ground. In terms of the Occupational Health and Safety Act of 85 of 1993, in particular, Section 8, which compels the employer to ensure that all employees have a safe working place, this has become much more important during the pandemic, as the contraction of COVID-19 in the workplace has been regarded as a workplace injury, which needs to be reported to the Department of Labour and that the necessary processes are followed, like any other workplace injury.

The problem faced with now is the right of the employee not to be vaccinated versus the safety of the employee in the workplace and, more importantly, the safety of the entire workforce. In terms of section 36(1) of the Constitution, the general requirements for the limitation of any right are that it may be limited only in terms of law of general application “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.

This conundrum was discussed in the recent decision of the Labour Court, ESKORT LIMITED and STUURMAN MOGOTSI & Others JR1644/20, in which Judge Edwin Tlhotlhalemaje overturned a previous ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) that Mr Mogotsi be reinstated with a final written warning.

The judge said the case raised a topical issue surrounding the fairness of the dismissal on account of gross misconduct and gross negligence.

The judge stated that “The facts of this case are, indeed, extraordinary. They are indicative of the need for more to be done at both the workplace and in our communities, ensuring that employers, employees and the general populace are sensitised to the realities of this pandemic and to reinforce further the obligations of both employers and employees in the face of it, or event of an exposure.”

Mr Mogotsi, a member of the company’s in-house Coronavirus Site Committee, was dismissed last year after being found guilty of gross misconduct for failing to disclose that he had undergone COVID-19 testing and was waiting for his results.

A second charge of gross negligence related to the fact that he put the lives of his colleagues at risk by reporting for duty after he had tested positive.

The burden of safety lies on the employer to ensure the safety of the general work populace. Thus, the seemingly unfair demand for compulsory vaccination leaves the employer with little option but to follow that route in order to mitigate the risks of the spread of the virus in the workplace and the impact such an event can have. Still, the employer is now faced with the difficult task of demanding that employees get vaccinated, which seems unfair on the face of it. However, it could potentially become fair when considering Section 36 of the Constitution and the limitation of rights, where employees are not willing to vaccinate, which is their right. Nevertheless, when compared to the best interests of the rest of the workplace, that right can be limited.

The case shows how irresponsible employees can be, and thus we should see more and more employers left with no choice but to require their employees to vaccinate. The employees who do not want to vaccinate might feel discriminated against, but the basis of the decision making is in the best interests of the entire workplace populace.

Article by: Thabo Mongale
Dispute Resolution Official – Kimberley