The dismissal of an employee who did not adhere to the employer’s Vaccine Mandate Policy and refused to be vaccinated was found to be unfair.

Ms Tshatshu, a Senior Inventory Controller at Baroque Medical (Pty) Ltd, was dismissed for operational requirements, emanating from her non-compliance with the employer’s Vaccine Mandate Policy.

In terms of clause 10 of the employer’s Mandatory Covid-19 Vaccination Policy: “Employees who refuse to be vaccinated will be in breach of Company Policy and their services may be terminated for operational reasons. There are no alternative positions or roles that do not require vaccination.”

After conducting a risk assessment, the employer consulted with the employees. Ms Tshatshu stated that her refusal to be vaccinated was due to her fear of the vaccination, as she had had a negative reaction to a flu vaccine 10 years earlier. When asked to provide proof, she provided a doctor’s note from the same doctor who treated her 10 years earlier. The employer did not accept this doctor's note and sent her to a MediClinic, whereafter she came back with another doctor's note. This note was, however, not accepted by the employer either. Ms Tshatshu, at her own expense, then went to another doctor, but he refused to write a detailed report for the applicant.

Under these circumstances, the employer decided to retrench Ms Tshatshu with no severance pay.

Referring to the Constitution, and more specifically to the Equality Clause, Commissioner Byrne pointed out that everyone is equal before that law. Government has not unfairly discriminated against anyone in terms of vaccine policies. Neither has any legislation been passed requiring that all employees or citizens be vaccinated.

Moreover, at the time of this dispute, the Consolidated Directive of 11 June 2021, was issued in terms of Regulation 4(10) of the Regulations under Section 27(2) of the Disaster Management Act 57 of 2002. With regard to requiring certain employees to be vaccinated, this risk assessment applied only to those individuals who were identified in terms of specific criteria. The Directive also did not permit a blanket Mandatory Vaccine Policy.

A question the Commissioner raised was, “How is it reasonable to implement such a policy amongst so few of the population” in light of the fact that employees of Baroque Medical would “interact with their families and friends? Their wives and husbands go to work at employers who do not have mandatory vaccine policies. Their children go to schools where there are no mandatory vaccine policies. They go to supermarkets, restaurants and other organisations that do not have mandatory vaccine policies. Any of them can pick up Covid-19 anywhere. It has been commonly shared in the news, social media and interactions between private citizens that the vaccine does not prevent a person from getting Covid-19, nor does it prevent the vaccinated person from transmitting the virus to other persons. Again, how is it reasonable to implement such a policy amongst so few of the population?”

Since the employer decided to retrench unvaccinated employees, they had to prove that the dismissal was procedurally fair – i.e., that they had consulted with the employee. Their Vaccine Mandate Policy, however, made it impossible to have followed Section 189 of the Labour Relations Act 66 of 1995 (LRA), as it stated that employees who refused to be vaccinated would be dismissed. Their consultations, according to the Commissioner, were merely lip service.

Concluding that the right to issue any law of general application in respect of Covid-19 vaccinations rests with government, the Commissioner pointed out that employers have no right to formulate a Covid-19 Vaccine Mandate Policy. Such policies are not only unreasonable, but they also have no place in our labour market.

Finding that the dismissal of the employee was substantively unfair, the Commissioner awarded Ms Tshatshu compensation of 12 months’ salary.

Written by By Nicolene Erasmus, Labour Guide

This article does not constitute legal advice and is based on the authors interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour related matter, readers are encouraged to arrange a formal consultation with the author.