Not so long ago, CEO took a look at particular cases which had surfaced around the country pertaining to mandatory vaccination policies in the workplace. As I’m sure many are aware, this has been a very controversial topic over the past few months.
There have been several cases before the CCMA and the Labour Court regarding mandatory vaccinations in the workplace.
In our previous article, which can be found on the following link, https://ceosa.org.za/developments-of-mandatory-vaccine-policies-in-labour-law/, we explored several cases, namely, Theresa Mulderjj v Goldrush Group, Gideon Kok v Ndaka Security, Dale Dreyden v Duncan Korabie Attorneys as well as Solidarity v Ernest Lowe, a trading division of Hudago Trading (Pty) Ltd, all of which reflected positively towards employers enacting mandatory vaccination policies.
The most recent ruling by the CCMA, however, has found a workplace mandatory COVID-19 vaccination policy to be unlawful, ordering that an employee’s dismissal for refusing to get vaccinated was unfair and awarding her a year’s salary as compensation.
In the matter between Kgomotso Tshatshu v Baroque Medical (Pty) Ltd, the CCMA had to determine whether the dismissal of the employee, Ms Tshatshu, based on the employer’s operational requirements, was indeed fair.
In the above case, the employer implemented a mandatory vaccination policy which required its employees to be vaccinated and stated that the vaccination of its employees was an operational requirement as it would reduce the time that employees spend away from work due to illness, which in turn, would affect the productivity of the business. In addition, the employer argued that the mandatory vaccination policy was imperative to ensure a safer working environment for all employees.
Ms Tshatshu declined to be vaccinated due to medical reasons, in that previously, she had a negative response to a flu vaccination approximately ten years earlier. Not only was she retrenched, but she did not receive severance pay in respect of such retrenchment on the basis that she failed to provide a reasonable and substantiated medical note.
The Commissioner concluded that when one considers the Constitution, the limitation of rights provided for in the Constitution, the lack of reasonableness of the rule, and the Government’s response to COVID-19 and the regulations it has issued, an employer has no right to formulate any COVID-19 Vaccination Mandate. The Commissioner was of the view that the prerogative for a mandatory vaccination policy rests with the Government.
The award read as follows: “I take into account that the dismissal was substantively unfair — in fact, unconstitutional. The dismissal should not have occurred, and the applicant has lost employment she has had for years due to, in effect, the employer’s breach,”
It is very important to note that this ruling was in contrast with a previous ruling by another Commissioner relating to the same employer and the same mandatory vaccination policy.
In Bessick v Baroque Medical (Pty) Ltd, the CCMA found the employer was justified in implementing mandatory vaccination in the workplace as a mechanism to curb absenteeism related to COVID-19 and that a failure to vaccinate led to a substantively fair dismissal for operational requirements.
In this previous case, the dismissal was found to be substantively fair, and the employee was not entitled to severance pay because the employee had the choice to vaccinate but refused to do so, which was unreasonable.
It is very important to note that the Commissioner in this latest case did not consider that the Code of Practice: Managing Exposure to SARS-COV-2 in the Workplace 2022, dated 15 February 2022, which permits employees to implement a mandatory vaccination programme and obliges workers to comply with the employer’s plan. These provisions remain the same in the most recently published Code of Good Practice: Managing Exposure to SARS-COV-2 on 24 June 2022.
Therefore, this does not appear to be left to the prerogative of the government.
Furthermore, the CCMA Commissioner does not have the power to render mandatory vaccination policies unconstitutional, which is something that the Constitutional Court would have to declare.
It is worth keeping in mind that there is still a lot of uncertainty pertaining to these disputes. However, employers who implement mandatory vaccination policies are encouraged to follow the necessary steps prior to implementation.
Article by: Wesley Field
Provincial Manager – CEO Bloemfontein