Legal Articles

Legal discourse in the past year (2021) has been awash with discussions surrounding the issue of mandatory vaccination not only in the workplace, but also in various sectors of the economy. To date the vaccination drive is on voluntary basis for the general populace and some sectors of trade and industry, although the business community has vigorously pushed for the government to consider and pursue policies on vaccine mandates for employees. As per the Occupation Health and Safety Act 93 of 1995 employers have an obligation to ensure and provide a safe working environment.

This push, mainly under the auspices of the National Economic Development and Labour Council (NEDLAC) which is a coalesce where business, labour and government converge to inform and influence policy, was for the adoption of a framework under which mandatory vaccination policies could be effected in the workplace.

Consequently, the Department of Labour published on 11 June 2021 the amended Consolidated Directions on Health and Safety in Certain Workplaces, which is a guideline under which mandatory vaccination policies may be introduced and ought to be consistent with. Below is an adapted general guide:

1. Covid-19 Risk Assessment is conducted;
2. Determination on whether a mandatory vaccination policy is required;
3. A vaccination plan is developed or an existing one is amended;
4. Consultation with health and safety committee;
5. Identification of employees according to risk profiles;
6. Consultation with trade unions, employees’ representatives and employees;
7. Publishing of policy and inspection;
8. Employee education on vaccines;
9. Notification to employees identified for mandatory vaccination;
10. Allow employees to register for vaccination and get time off to go do so;
11. Notification of the right to object to or seek exemption from vaccination;
12. Engagement with employees who have refused to vaccinate;
13. Adjustments to accommodate the employees who have decided not to vaccinate.

Refusal to Vaccinate - Fair Dismissal?

Dismissal on incapacity grounds ought to be considered only as the last resort, after having considered necessary measures to accommodate those employees that would have withheld consent to vaccinate. These measures may include finding them alternative roles, increasing social distancing protocols in the workplace, providing stronger and better protective equipment and considering to set up separate workstations. Reasonably however, the employer cannot be expected to bend over backwards in trying to accommodate the unvaccinated employees and a balance ought to be achieved between the employer’s operational requirements and the rights of the employees.

Mulderij vs Goldrush Group

In the recent case of Mulderij vs Goldrush Group GAJB 24054-21 the CCMA was asked to decide if the dismissal of the applicant had been unfair, due to her refusal to vaccinate. When the matter was still being handled internally (workplace) and in the subsequent appeal, the applicant had firstly argued medical grounds, before abandoning them in favour of constitutional grounds on why she refuses to take the vaccine. The Respondent on its part had ruled that due to the fact that the applicant’s request for exemption had been refused by the Exemption Committee, mainly because the applicant had been identified as a high-risk individual who interacts with people daily while on duty in confined and uncontrollable spaces, the employer could not do anything more to accommodate the applicant without being vaccinated. The applicant was employed as a Business Related and Training Officer and this position required her to have daily physical interaction with colleagues and clients. Before arriving at the decision to dismiss the applicant, the Respondent had gone through the following processes in the adoption of its mandatory vaccination policy;

1. Developed a mandatory and voluntary vaccination policy;
2. Policy was forwarded to attorneys for review, who accordingly produced the final draft;
3. After risk assessment, the policy was sent to EXCO for approval;
4. EXCO approved the mandatory policy;
5. A Mandatory Vaccination Policy Committee and Appeals Committee were set up;
6. The Committee identified risks and mitigated them;
7. Consultations with trade unions and all employees were done over 3 months;
8. The Committee prepared an implementation plan;
9. Employees were informed of the provision to apply for exemption;
10. Benefits of vaccination were communicated during consultations, with a Human Rights Commissioner and medical specialist in presence.

The applicant applied for exemption which was declined, and her further refusal to vaccinate resulted in her being dismissed after an appeal process. Upon referral of the matter to CCMA the applicant argued that her right to bodily integrity is being ignored by the mandatory vaccination policy, despite being protected under section 12 (2) of the Constitution. Further, applicant argued that by being made to choose between accepting the vaccine or risk losing her employment, amounts to a huge social pressure and emotional discomfort. She also argued that she has adhered to health protocols and practiced social distancing since introduction by the government.

Decision of the CCMA

The CCMA Commissioner took notice that ill health and injury are grounds for incapacity as provided under Schedule 8 of the Code of Good Practice. Not that the applicant was ill per se, but that her refusal to vaccinate presents an ever-imminent risk of ill health to herself and other employees that she interacts with daily. This state of affairs does not achieve a safe working environment which the employer is obligated to provide under the Occupation Health and Safety Act 93 of 1995. Under the circumstances further, an employer may not force an employee to undergo medical treatment (in this case vaccination) and therefore in the event that the nature of the job and duties of the applicant required that she be in constant interaction and contact with colleagues and clients, the employer was left with no choice but to dismiss the applicant. The employer argued that the applicant “refused to participate in the creation of a safe working environment.” The CCMA ruled that the dismissal was not unfair under the circumstances.

Van Deventer & Van Deventer Inc - Attorneys Johannesburg & Cape Town

This case is an important one as it becomes one of the first (if not the first) to decide on a dismissal based on incapacity emanating from the refusal to vaccinate for Covid-19. Our opinion is that firstly, the CCMA decision did not dwell much on addressing and rebutting the constitutional argument of the applicant, specifically with regards to section 12 (2). It must be remembered that rights in the constitution may be limited under certain circumstances as per section 36 of the Constitution. The CCMA decision partially addresses this aspect when it makes a reference to the remarks of the Deputy Judge President of the High Court in Gauteng where he says the community interests at times must trump individual interests. Secondly, the CCMA decision is silent on whether the Respondent’s adoption of a mandatory vaccination policy was anchored on medical facts.

It is our view however, that the Respondent’s introduction of its mandatory vaccination policy catered for all the important steps, and therefore was consistent with the Consolidated Directions on Health and Safety in Certain Workplaces as published by the Department of Labour on 11 June 2021.  

Lastly, the other side

The other side however, is that the decision of the CCMA might not have been the same had the applicant’s position and duties in the workplace not been where she is exposed to interaction with colleagues and clients. It follows that it becomes unreasonable and unjustifiable to mandate vaccines on employees who are able to fully work remotely (which was not the situation in this case however).

It remains to be seen whether the applicant will appeal the decision in the Labour Court or by way of application for direct access to the Constitutional Court as this case and others pending in other forums raise important constitutional questions.

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