South Africa’s employment tribunal has issued its first decision on the dismissal of an employee for refusing to get vaccinated against Covid-19.  The case was heard in January 2022 at the Commission for Conciliation, Mediation and Arbitration (CCMA) offices in Johannesburg. An incapacity inquiry was convened by the employer, Goldrush, which argued that the employee’s decision to not get vaccinated incapacitated her.  The CCMA issued an arbitration award concluding that the dismissal for incapacity was fair.

Johan Botes, Baker McKenzie Partner and Head of the Employment and Compensation Practice in Johannesburg explains, “We’ve been waiting (with bated breath) for guidance from the tribunal as more employers introduce mandatory vaccination policies in South Africa. This case provides clear direction that the employee's individual rights are not carved in stone and are subject to limitation. In paragraph 26, the tribunal commissioner approves of a quote by the Deputy Judge President of the largest court in the country, the South Gauteng High Court, where he discussed the duty of an individual to be civic minded.”

Botes explains that this arbitration award offers reassuring confirmation to employers who are keen to see employees returning to offices without placing the health of colleagues and customers at undue risk. Businesses have a statutory obligation to provide a safe and healthy working environment. This duty allows businesses to conduct an assessment of the risk of allowing non-vaccinated parties on its premises, and to mandate vaccination in appropriate circumstances. Individuals are permitted to make representations in respect of reasonable accommodation to be extended to them in cases of legitimate grounds for refusal or inability to get vaccinated.

“As this tribunal outcome shows, not all objections or representations stand to be accepted, and employees could face termination of employment where their employer rejects their representations,” he adds.