Update regarding mandatory vaccination policies in the workplace in South Africa
Over the past few months, there have been a number of cases before the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court (LC) in South Africa regarding mandatory vaccinations in the workplace.
The most noteworthy cases heard by the CCMA were the Theresa Mulderij v Goldrush Group (GAJB 24054-21) case in which the CCMA found the dismissal of the employee to be substantively fair due to the fact that the employee was permanently incapacitated on the basis of her decision not to vaccinate; and the Gideon J Kok v Ndaka Security and Services (CCMA) case, where the CCMA held that the suspension of the employee after he refused to be vaccinated, was a fair suspension.
More recently, 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 fair.
In this case, the employer implemented a mandatory vaccination policy which required all its employees to be vaccinated and alleged 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 affects the productivity of the business. In addition, the employer argued that the mandatory vaccination policy was required to ensure a safe working environment for its employees.
Ms Tshatshu refused to vaccinate due to medical reasons, in that she previously had a negative response to a flu vaccination 10 years earlier. The employer requested a medical certificate confirming this adverse reaction, and Ms Tshatshu provided two medical notes in this regard. These medical notes were rejected by the employer which then proceeded to retrench Ms Tshatshu based on its operational requirements. Not only was she retrenched but she was not paid severance pay in respect of such retrenchment on the basis that she did not provide a reasonable and substantiated medical note.
The Commissioner considered the reasonableness of the vaccination policy, the issue of severance pay, and whether the dismissal was substantively fair.
Reasonableness of a mandatory vaccination policy
On the reasonableness of the policy, the Commissioner found that the employer did not lead any evidence on the effectiveness of a mandatory vaccination policy in any organisation that as implemented one. In addition, the Consolidated Direction of 11 June 2021, issued in terms of Regulation 4(10) of the Regulations under section 27(2) of the Disaster Management Act 57 of 2002, which was in force at the time of this dispute, did not provide for or permit a "blanket mandatory vaccine policy”.
The Commissioner also found that the implementation of such types of policy are illogical as employees 'do not live in a cocoon' and interact with various other people who may not be subject to mandatory vaccine policies and would therefore still be at risk of contracting COVID-19 or transmitting the virus to other persons. The Commissioner noted that the employer did not produce a risk assessment prior to implementing the policy nor did it lead any evidence on it. The Commissioner remarked that all the employer has is "a nicely worded policy document, but which does not talk to the reasonableness of the rule itself".
The Commissioner did not agree that the employee was not entitled to severance pay on the basis that there was no reasonable and substantiated medical certificate. The Commissioner was of the view that the employer would still have dismissed Ms Tshatshu regardless of this requirement, and therefore since the outcome was the same, severance pay would have been due.
Substantive fairness of dismissal
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 Government’s response to COVID-19 and 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 rest with the Government. The Commissioner therefore found the dismissal to be substantively unfair, and in fact unconstitutional.
It should be noted that the findings in this decision are substantially different to that of another commissioner’s findings who presided over a similar unfair dismissal dispute involving the same employer. In Bessick v Baroque Medical (Pty) Ltd, the commissioner found that the employer had not “committed any wrongdoing in its decision to terminate the employee’s services by reason of operational requirements”, as the consequence of failure to comply with the mandatory vaccination policy. 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.
We point out 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) (Code) actually 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 24 June 2022. Therefore, this does not appear to be left to the prerogative of government. Furthermore, the CCMA commissioner does not have the power to render mandatory vaccination policies unconstitutional and this is something that the Constitutional Court would have to declare as unconstitutional.
Employers who implement mandatory vaccination policies need to act fairly and rationally in respect of such policies and dismissal should in our view be a last resort after considering all other measures to reasonably accommodate an employee who refuses to be vaccinated. There would also need to be a risk assessment conducted to determine whether a mandatory vaccination is in fact necessary and whether it would be reasonable in the circumstances and employees should be consulted on this policy before implementation.