On 11 June 2021, South Africa’s landscape regarding mandatory vaccination in the workplace changed with the publishing of the Consolidated Directions on Occupational Health and Safety in certain workplaces (the Directive). This Directive led to wide debate on an employer’s ability to mandate employees to receive the Covid-19 vaccine. Employers potentially face reputational and financial consequences if an employee’s objection on medical or Constitutional grounds is upheld. On 21 January 2022, the CCMA found that the dismissal of an employee for refusing to comply with her employer’s mandatory vaccination policy was fair. The employee’s objection was based on her Constitutional right to bodily integrity.
In the arbitration award, the CCMA dismissed the employee’s unfair dismissal claim after finding that the dismissal for incapacity (inability to do the job for which the employee was engaged) was substantively fair. The facts can be summarised as follows:
- The employee’s position was considered ‘high risk’ given her interaction with colleagues and site workers in confined and uncontrollable spaces.
- The employer had a mandatory vaccination policy in place which, given her position, required the employee to be vaccinated.
- The employee nonetheless refused to be vaccinated, based on her right to bodily integrity. She applied for an exemption in terms of the policy. The exemption was declined.
- The employer called the employee to hearing to determine whether the continued employment relationship was possible. Given the employee’s skills, there was no alternate position in which she could have been accommodated in light of her refusal to be vaccinated. The chairperson found that the employment relationship was not possible and the employee was dismissed.
The arbitrator accepted that the employee’s refusal to be vaccinated, implicitly, resulted in her refusal to participate in creating a safe work environment. In concluding that the dismissal was fair, the arbitrator took into consideration the extensive consultation process that the employer embarked upon prior to implementing the mandatory vaccination policy, as well as the objective of the policy, that is, the creation of a safe working environment. Further, the policy allowed employees who did not wish to be vaccinated to apply for an exemption. Of great significance was the nature of the employee’s role, which required her to interact daily with colleagues in confined and uncontrollable spaces, and the fact that she could not be accommodated.
The CCMA was influenced by a memo by the Deputy Judge President of the Gauteng Division of the High Court to his colleagues that said “... [i]f one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of the individual”.
The award highlights the fact that while employers are required to provide and maintain a safe working environment, employees have a reciprocal obligation to take reasonable care of their own health and safety and that of others who may be affected by their actions or omissions. Employees are also required to comply with their employer’s health and safety rules and procedures.
Written by Michael Balie, Associate, Norton Rose Fulbright