Covid-19 Update – No Vac No Job

Following the latest directives of the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces under the Disaster Management Act No.57 of 2002 in South Africa (“Directions”), which has endorsed an employer’s right to adopt mandatory vaccination policies in their workplaces, the Commission of Conciliation Mediation and Arbitration (“CCMA”) has made pronouncements on the fairness of a dismissal based on the employee’s refusal to vaccinate against the Covid-19 virus.

The first case on mandatory vaccination policies in the workplace considered by the CCMA was the Theresa Mulderji v Gold Rush Group. In this case, the applicant, an employee at Goldrush had been dismissed after refusing to take the covid-19 vaccine.

The applicant was an employee of Gold Rush. The nature of her job fell squarely within jobs that have been placed as essential for mandatory vaccination to apply to. The applicant however rejected taking the vaccine citing her constitutional right to bodily integrity.

The respondent made an exception by which employees who did not wish to vaccinate could apply for. The applicant duly applied for the exemption which was rejected by the employer in that the applicant interacted with external clients and internal colleagues thereby negating the efforts by the company to create a safe working space.

The respondent submitted that due to the nature of the job of the applicant, there was no other position within the company that could have been allocated to her therefore, the company found her to be permanently incapacitated as she was not willing to even take the Covid-19 vaccine in the future.

The applicant argued that her dismissal was substantively unfair as it infringed on her constitutional rights. The CCMA established, that the company had satisfied all procedural and substantive measures in creating the mandatory vaccination policy and the applicant’s dismissal having been made in line with the policy, does not constitute substantive unfairness as the applicant’s refusal is resistance to the company’s policy of creating a safe working environment.

The CCMA made yet another pronouncement on unfair dismissal resulting from mandatory covid-19 vaccinations in Gideon J Kok v Ndaka Security and Services. The facts of the case are that the applicant was suspended following refusal to take the Covid-19 vaccine. The respondent, a security company and one of its clients, SASOL, had adopted a policy demanding all workers on their premises to be vaccinated against the virus. The applicant worked at the SASOL premises.

The nature of the job that the applicant performed required him to share an office with ten other people whilst also working in close contact with others, thereby increasing the hazardous nature of their working conditions.

When the applicant refused to vaccinate the respondent made an option of providing a Covid negative test results weekly in order to access the workplace. The applicant only provided this for a short while and thereafter he stopped.

The CCMA found that the dismissal of the applicant was not unfair, either procedurally or substantively. The CCMA also noted that although the constitutional right to bodily and psychological integrity are important, in some instances, public interests outweigh these rights. It further relied on President Cyril Ramaphosa’s address which held that mandatory Covid-19 vaccination policies can be implemented but the policies must show respect to people’s rights while also keeping the balance between public health imperatives, peoples constitutional rights and the efficient operation of the employers business.

The two cases discussed above provide a precedent wherein a mandatory vaccine policy has been adopted by a company and where a company has reviewed other options including change of job positions. In light of the above, a company can dismiss an employee who has not provided substantial reasoning for the refusal or failure to take the Covid-19 vaccine.