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published on 16 February 2022 | reading time approx. 3 minutes
On 21 January 2022, the South African Conciliation, Mediation and Arbitration ("CCMA") published its award in the matter between TM v Goldrush Group (GAJB 24054-21). The CCMA held that a dismissal of Goldrush Group's ("the Company") employee who refused to be vaccinated in terms of its company policy was fair.
By way of background, the Company had implemented a mandatory vaccination policy ("the Policy"), during the course of 2021, following three months of consultations with their employees and relevant unions. The Policy had been implemented by the Company following the introduction of the Directive issued by the employment and labour minister during the course of 2021.
Theresa Mulderji, an employee of the Company, had refused to be vaccinated in terms of the Policy, specifically with reliance on section 12(2) of the Constitution which deals with the right to bodily and psychological integrity. She based her objection and requested to be exempted from vaccination on these grounds. The Exemption Committee of the Company, which had been established in terms of the Policy to hear such objections or requests for exemptions, considered and declined her application. The rational of the decline was owing to the fact that she was deemed to be a high-risk individual with daily interaction with other staff owing to her position as a Business Related and Training Officer of the Company.
Following her continued refusal to be vaccinated in terms of the Policy, an incapacity hearing was called by the Company. Following the incapacity enquiry, the Chairperson hearing the matter concluded that the employee was permanently incapacitated as a result of her failure to be vaccinated and was as such contravening her obligation to "participate in the creation of a safe working environment." Further, the Chairperson found that as she had indicated that she had no intention of being vaccinated that the incapacity was permanent, as such her contract of employment was terminated.
This dismissal resulted in Ms Mulderji approaching the CCMA for a determination of the substantive fairness of her dismissal. The CCMA considered the process taken by the Company as well as the reasoning for the Exemption Committee's rejection of her application for exemption. The CCMA concluded that the dismissal was indeed fair both procedurally and substantively and that the employee was indeed permanently incapacitated.
The CCMA added that the employee's failure to be vaccinated meant that she had failed to assist the Company with the creation of a safe working environment. It must be noted that the Occupational Health and Safety Act 85 of 1993 ("OSHA") places an obligation on both an employer and employee to promote, ensure and assist with a safe working environment. The employee may well take the matter to the Labour Court for determination.
The matter of an employer's mandatory vaccination policy again came to the fore in a judgment delivered by the Labour Court on 2 February 2022. The urgent application was brought before the court to declare an employer's mandatory vaccination policy unlawful but was struck off the court roll for lack of urgency.
The above-mentioned case was that of Solidarity obo Members & 2 Others vs SEESA (Pty) Ltd. Solidarity approached the Court on an urgent basis on behalf of its members for an order declaring SEESA's mandatory vaccination policy and any other related policies to be unlawful. SEESA had implemented a policy titled "covid-19 Admission to Premises Policy". The policy was aimed at prohibiting unvaccinated employees from entering the workplace.
The employees who were represented by Solidarity had made it clear to SEESA that they would not comply with its mandatory vaccination policy. The policy stated that all employees were required to be vaccinated prior to returning to its offices in January 2022. Employees who were not vaccinated as of 1 January 2022 would not be permitted access to SEESA's offices. The unvaccinated employees had returned to work on 1 January 2022, were subsequently denied access and were informed that they would not be paid. As a result, urgent proceedings were instituted in the Labour Court.
The Labour Court in this matter was only required to consider whether the application was indeed urgent and not whether the policy was legal and valid. The Court in this instance determined that the matter was not urgent as the application had not been brought at the earliest opportunity (i.e., when the policy was first introduced and brought the employees attention which had occurred during November 2021). The Court found that the application should have been brought during November 2021. In light of this the matter was struck off the court roll for lack of urgency and the applicant was ordered to pay the costs of the employer. The applicant was afforded the option to re-enrol the matter in the ordinary court to be heard at a later stage.
It is clear from the above that employees refusing to be vaccinated will continue to challenge the validity of Companies mandatory vaccination policies. It is unfortunate that we do not have a definitive judgement as yet on the matter and as such it is still imperative that Companies ensure that they are able to justify the need for such a policy and further to ensure that any policies that are implemented are in accordance with not only OSHA but the Disaster Management Act of 2002 along with the regulations and directions published in terms thereof.
Companies are encouraged to seek legal advice when deciding to implement a mandatory vaccination policy or to take any disciplinary action against employees for their refusal to comply with any mandatory vaccination policies.
Coronavirus: What you need to know
Anna-Lena Becker, LL.M.
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