South Africa’s primary dispute resolution body, the Commission for Conciliation, Mediation and Arbitration (“CCMA”) has issued its first award in respect of an employee refusing to vaccinate in the face of the employer’s mandatory vaccination policy.
Since the publication of the controversial Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces in June 2021, the debate has raged on about the legality of mandatory COVID-19 vaccinations in the face of constitutional safeguards protecting an individual’s right to freedom and security of person, the right to bodily and psychological integrity and freedom of religion. It was inevitable that this issue would soon give rise to unfair dismissal disputes by employees refusing to vaccinate.
In the matter between Theresa Mulderji v Goldrush Group, Ms Mulderji referred an unfair dismissal dispute to the CCMA on the grounds of incapacity.
She had been employed by Goldrush as its business related and training officer. After undertaking a risk assessment of its workplace in respect of COVID-19, Goldrush had opted to introduce a mandatory vaccination policy and allowed employees the opportunity to apply for exemption from the compulsory inoculation scheme. Following the refusal of Ms Mulderji’s exemption and appeal application, and her continued refusal to comply with the mandatory vaccination policy, she was summoned to an incapacity hearing by Goldrush.
At the hearing, the presiding officer concluded that Ms Mulderji was permanently incapacitated based on her refusal to get vaccinated. She was then dismissed.
Ms Mulderji then approached the CCMA, challenging the substantive fairness of her dismissal and sought reinstatement or maximum compensation.
In the arbitration proceedings, Goldrush indicated that it had gone through a thorough risk assessment process before resolving to apply a mandatory vaccination policy.
It was also contended, that given the nature of Ms Mulderji duties, there was no other position where she could be placed.
Ms Mulderji raised her right to bodily integrity as a defence to dismissal. She further stated that she felt under extreme social pressure and emotional discomfort at being subjected to deciding between her livelihood and agreeing to be vaccinated, especially in circumstances where she had to waive her rights of recourse against pharmaceutical companies and her employer.
She pointed out that, since the beginning of the national lockdown, she had strictly followed COVID-19 protocols and was aware that the World Health Organization had confirmed that the vaccine does not stop the spread or contraction of the COVID-19 virus, but only serves to minimise the severity of symptoms.
According to Ms Mulderji, all she wanted was for Goldrush to exempt her from mandatory vaccination and offer her an alternative position. It also emerged during the proceedings that Ms Mulderji had abandoned her intention to seek medical exemption after her doctors had refused to provide a medical certificate in support of her application.
The commissioner was satisfied that Goldrush was entitled to approach the matter as one related to incapacity, as Ms Mulderji was unable to do the job for which she had been employed. She accepted that the decision to dismiss her for incapacity was not a medical question but one that should be made by an employer with regard to all the available facts.
In the commissioner’s assessment, Goldrush had followed all the crucial steps set out in its vaccination policy and that the ExCO had considered Ms Mulderji’s exemption claim. Ms Mulderji had been identified as a high-risk individual who was required to interact with colleagues daily while on duty in confined, uncontrollable spaces. The commissioner concluded that Ms Mulderji was permanently incapacitated on the basis of her decision not to get vaccinated and by implication, her refusal to participate in the creation of a safe working environment.
There has been much debate as to whether an employer, after implementing a mandatory vaccination policy, can dismiss those who refuse to vaccinate on the basis of incapacity or operational requirements. Although incapacity is usually associated with ill-health and/or injury, it was previously held by the Labour Court in Armaments Corporation of South Africa (SOC) Ltd v CCMA that any condition or circumstance that renders an employee incapable of performing their work may constitute incapacity.
In the light of this recent decision by the CCMA, it seems that, provided that an employer follows proper steps from the risk assessment process to the implementation of the mandatory vaccine policy, it could successfully dismiss employees who refuse vaccination on based on incapacity.
Although this arbitration award may provide a sigh of relief to employers, it is important to note that this may not be the final word on the matter and the Labour Court or even the Constitutional Court may ultimately be called upon to determine this issue in due course. It should also be remembered that the fairness of the employer’s actions will be assessed in light of the specific circumstances of each case.
It is of paramount importance that employers keep in mind the Consolidated Direction, which provides that every employer must undertake a risk assessment before determining whether it intends to make vaccinations mandatory. If so, the employer must carefully identify only those employees who by, virtue of risk must be vaccinated. In addition, the Consolidated Direction requires that, in developing a vaccination plan or policy, an employer must take into account the rights of its employees to bodily integrity, and freedom of religion, belief and opinion as set out in the Constitution.
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Read the original publication at ENSafrica.