The issue of mandatory Covid-19 vaccinations in the workplace has been a contentious issue ever since it was first introduced in the Covid Occupational Health and Safety (OHS) Direction in terms of the Disaster Management Act. The debate continued with corporations such as Discovery implementing compulsory vaccination policies. Something very much at the top of employers’ minds was whether compelling their employees to have Covid vaccinations strayed into the territory of unfair discrimination.
Two awards, which have come out of the CCMA recently, say that you are perfectly entitled to introduce such a policy and, if you have an employee who point-blank refuses to get the vaccine you are perfectly within your rights to ultimately dismiss this employee. Let’s take a closer look.
A Person Refusing A Vaccine May Be Declared Permanently Incompetent
In the award between Theresa Mulderij and The Goldrush Group:
The company adopted a mandatory vaccination policy after observing all good governance protocols such as consulting with the unions and conducting the required risk assessments. As part of this policy, employees were able to apply for an exemption from this policy.
The employee refused to have the vaccination on various grounds, such as having the vaccine would be against her right to bodily and psychological harm. In addition, the employee pointed out that the World Health Organization (WHO) had said that the vaccination does not prevent the transmission of Covid but should you contract the disease your symptoms would be less severe. Thus she questioned the validity of the compulsory vaccination policy.
The Commissioner felt that the employee’s refusal to take the vaccine had rendered her permanently incapacitated. He ruled in the company’s favour.
Suspending An Anti-Vaxxer Employee Is Not An Unfair Labour Practice
In the award between Gideon Kok and Ndaka Security and Services:
The employer supplies outsourced security and services to clients. One of these was Sasol at whose premises the employee was stationed.
Sasol had a 100% mandatory vaccination policy and extended these requirements to all sub-contractors and the like who regularly accessed their premises.
The employer had a mandatory vaccination policy. Alternatively, employees who elected not to have a vaccination would still be permitted on site should they present a weekly negative COVID-19 result at the employee’s cost.
However, once Sasol had extended their policy – as described above – the employer was forced to deactivate the employee’s access card with immediate effect pending on him getting vaccinated. In effect, the employee was suspended without pay.
The employee alleged that the employer had committed an unfair labour practice by suspending him. He felt that he would not contract the disease as his natural immunity would protect him.
In the Labour Relations Act (LRA) it is stated that suspension may be precautionary or punitive. In addition, there is nothing in the LRA which states that suspension may only be levied in the case of a dismissal.
The Commissioner ruled that the employee’s suspension was not an unfair labour practice.
These cases support the view that the Constitution and the OHS Direction allow employers to implement compulsory vaccination policies based on their operational requirements and obligations under the OHS Act. The OHS Act requires employers to protect employees' health and safety and this is one of the measures that need to be analysed (risk assessment) and considered.
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