Vaccination status and dismissal

The COVID-19 pandemic continues to be a subject of much debate, more so now that we are seeing a roll out of “Mandatory Vaccination Policies” as well as “Return to Work” policies.

By the end of 2021, there was a significant increase in the number of employers who were committed to implementing a Mandatory Vaccination Policy within their workplace. Consequently, there has been a rise in the number of complaints the CCMA has received regarding unfair dismissal relating to the refusal of an employee to be vaccinated, notwithstanding the Mandatory Vaccination Policy implemented by the employer.

One of the recent cases brought to the CCMA is the matter of TM v Goldrush Group. In this case, it was found that the dismissal of an employee by the employer was indeed deemed to be substantively fair and ruled in favour of the employer. The employee submitted that they were entitled to refuse to be vaccinated based on their fundamental rights, as entrenched in the Constitution of South Africa, Act 108 of 1996 (the “Constitution”), notwithstanding the Mandatory Vaccination Policy implemented by their employer. The employer’s submission was that, in so refusing, the employee placed other employees at risk and prohibited the employer from ensuring a safe working environment for the employees and the public. Due to the nature of the employee’s job requirements, they could not be transferred to another department and/or be provided with another position within the employer’s employment.

Another dispute that was recently raised at the CCMA, was the matter of G J Kok v Ndaka Security Services. In this matter, the employee alleged that the employer had committed an unfair labour practice by directing that they may only return to the office if they were vaccinated against COVID-19 or if they provided the employer with proof of a weekly negative COVID-19 test result. One of the major clients of the employer, Sasol Ltd requires a 100% vaccination rate of all employees on their premises. The employee, who was contracted by the employer to provide services to Sasol Ltd at their premises, was therefore unable to enter the Sasol Ltd premises and was subsequently informed that they are to remain at their residence. It was not possible for the employee to be isolated at the workplace due to their physical interaction with other employees and visitors to Sasol Ltd.’s premises. The employee attended to submit 3 weekly negative COVID-19 tests, but, after passage of time, was no longer willing to do so as a result of the cost relating to the testing. In this case, the employer was mandated by their client, Sasol Ltd, to implement a mandatory vaccination policy. Similarly, to the TM v Goldrush Group matter, the employee cited their constitutional right to freedom and security, including their right to bodily and psychological integrity, as grounds for a claim of unfair labour practice.

Therefore, the common denominator in both cases is that the relevant employees cited their fundamental rights to attack the employers demands in respect of its mandatory vaccine policy. While the employees certainly have these fundamental rights, Section 36 of the Constitution provides for the limitation of an individual’s fundamental rights provided that the limitation is, inter alia, reasonable and justifiable in an open and democratic society. In this regard, our courts have regularly held that the public interest outweighs the right to bodily and psychological integrity of individuals in certain circumstances.

Considering the abovementioned, there were compelling reasons to limit the relevant employees’ fundamental rights, including that the vaccine against Covid-19 has shown demonstrable success in limiting severe illness and transmission of the virus, and that there is a very limited chance of adverse effects as a result of an individual receiving the vaccine. Less restrictive measures, such as the use of face masks, are already in place, and it appears that the vaccine is the last resort in curbing COVID-19. The aim of vaccination is to ensure a safe working environment for the employees of the relevant employers, as well as the general public, and to protect lives and livelihood of the community as a whole.

It is vital to clarify that even though employers certainly are entitled to implement mandatory vaccination policies, there may be potential risks and pitfalls to doing so. The key to implementing such policies is conducting an in-depth risk assessment prior to implementation of such a policy, ensuring that the implementation is justifiable given the nature of the industry and environment within which the employer conducts its business. It is further crucial that such a risk assessment must identify which employees are potentially at risk and how meaningful consultative process between the employer and its employees will take place, before, during and after implementation of the policy.

Whilst many employees may believe that mandatory vaccination policies infringe upon their fundamental rights and, therefore, may deem these policies to be unfair, the onus is on the employer to justify why they believe otherwise. Refusal to be vaccinated does not necessarily result in incapacity of an employee to perform their function. The employer will have to be able to prove it gave proper consideration to reasonably accommodating the employee as best as possible in the event that the employee objected to receiving the vaccine on either constitutional or medical grounds. Whilst there can be no doubt that employers have a right to protect their business interests, they must do so whilst having the utmost respect for the rights of their employees.

The South African Government clearly communicated that, although vaccination is voluntary, it relies on pressure from the private sector to carry out mandatory vaccination policies as a necessary step to reopen the South African economy. The COVID-19 pandemic has brought about unprecedented challenges and there is a call on all citizens to make sacrifices to their individual rights for the greater good. It is appropriate to quote Malcolm X, “When ‘I’ is replaced with ‘We’ even illness becomes wellness.”

“Work From Home” policies is yet another source of debate at present. This topic is perhaps less contentious than the mandatory vaccination policies, but nevertheless raises several concerns. Two years into the COVID-19 pandemic, we are starting to see some restrictions being lifted. More and more, employers are requesting employees return to the office. The question, therefore, is whether an employer is entitled to dictate that an employee returns to the office?

This question has to be answered with reference to the employment contract between the employer and the employee. Generally, an employment contract will determine where the employee must render the service from. From the outset, therefore, an employee would have contractually agreed that the employer would be entitled to dictate where the employee’s place of work in which to carry out their services would be. During the so-called “hard lockdown” period, employees were required to work from home, if they were capable of doing so. Following such hard lockdown, there has been no directive in place which entitles an employee to remain working from home. If an employee were to refuse returning to work, the employer would be within their rights to follow a fair dismissal procedure given the employment contract between the employer and employee.

Typically, we have seen that most employers are intending to implement a flexible return to office policy. Therefore, allowing a hybrid work environment, where employees could typically work from the office for two to three days per week, whilst working from home for the remainder of the work week. Notably, employers are also becoming more flexible with regards to working hours.

For further information and insights, please listen to our podcast on workplace policies and return to work in light of Covid-19.

If you have any queries or concerns regarding your company’s mandatory vaccination policy or return to work policy, please feel free to reach out to our Legal team.

Marc Humphries | Director Legal                      Phillip Kruger  | Director Legal     

[email protected]                           [email protected]