CCMA rulings on mandatory vaccination policies

by Carla Koutroulis. Two recent matters at the Commission for Conciliation and Arbitration (CCMA) dealt with the fairness of mandatory vaccination policies. We have previously touched on mandatory workplace COVID-19 vaccinations in our articles published on Retailing Africa in October 2021: Mandatory vaccination policies in the workplace; and in November 2021: Compensation for adverse side effects to mandatory vaccinations.

In this latest article, we look at these recent decisions and assess the implications for employers.

1. CCMA CASE STUDY: Theresa Mulderij / Goldrush Group

In the first award dealing with a dismissal for failure to comply with a mandatory vaccination policy, the CCMA found that the employee’s dismissal was fair. The employer implemented a mandatory vaccination policy, pursuant to a Risk Assessment in terms of the Consolidated Directive 11 of 2021; as well as consultations with effected employees, and the employee elected to not be vaccinated despite such policy. The employer held an incapacity enquiry and the employee was thereafter dismissed.

The employee referred her dismissal to the CCMA on the basis that her dismissal was substantively unfair. She argued that she has a right to bodily and psychological integrity in terms of section 12(2) of the Constitution, and requested that the employer accommodate her in an alternative position. The employer had formed an Exemption Committee, which  considered the employee’s application for exemption to the policy on the basis that she strictly followed all COVID-19 protocols; and that the vaccination itself did not spread the virus, but only minimised the severity of symptoms. The Committee declined her application on the basis that she was a high-risk individual who interacted with many other employees, as well as external clients, in person within a confined environment, thereby placing other staff members at risk. The employee was therefore dismissed, pursuant to an inquiry, on the basis that her refusal to vaccinate resulted in her being permanently incapacitated.

Finding: The Commissioner found that the employer had complied with the Consolidated Directive in implementing the mandatory policy; and that the employee had in fact been dismissed fairly by virtue of the fact that her refusal to be vaccinated resulted in her becoming incapacitated.

2. CCMA CASE STUDY: Gideon J Kok / Ndaka Security & Services

In this second arbitration, the employee referred an unfair labour practice dispute to the CCMA because he had been suspended for not complying with the company’s mandatory vaccination policy, which suspension would be upheld until such time as he either was vaccinated against COVID-19; alternatively submitted to weekly COVID-19 tests. The employee argued that he had a Constitutional right to choose not to be vaccinated against COVID-19, and that the employer could have resorted to alternative measures other than requiring him to be vaccinated. The employee further stated that the vaccine was still in an “experimental phase”. The employer gave evidence that it conducted three separate Risk Assessments, and that the nature of the services it rendered were deemed essential services in terms of the Disaster Management Act. The employee was one who was identified during the Risk Assessment process as one that required vaccination due to the fact that he shared office space with at least 10 other employees and worked in close contact with other employees.

The employer gave evidence that months prior, that the employee had contracted COVID-19, and contact tracing revealed he had more than likely given it to numerous other employees; and that the office had to be closed in order for all employees to self-isolate. The employer further gave evidence that as a contractor to Sasol, it was under pressure to have a 100% vaccination rate, and failure to do so could result in it losing its primary client.

Finding: The Commissioner found that the employer had taken extensive steps to perform the Risk Assessment as required by the Consolidated Directives; and that an alternative to vaccination was presented to the employee – namely weekly COVID-19 testing, which the employee had initially agreed to. Other employees who did not wish to be vaccinated were making use of such alternative. The Commissioner further held that there was a clear commercial rationale for the employer’s decision to implement such policy and that the decision to implement such policy was a “reasonable practical step” in ensuring a healthy and safe work environment. The CCMA held that such suspension was fair, and that the employer did not commit an unfair labour practice in this regard.

Assessment of CCMA Awards

In considering these awards, it is important to remember two key aspects:

• Every case will be determined on its own set of facts and circumstances.
• A CCMA award is not deemed to make precedent and is not binding on other commissioners or courts.

In light of the above, despite these two awards, it is not yet cast in stone that any and all dismissals based on failure to vaccinate will be found to be fair. As an employer, one needs to remember that should it wishe to implement a mandatory vaccination policy, that the Consolidated Directives must be adhered to in the strictest form. This will be the starting point to ensure that any decision regarding employment of an employee, based on such a policy, will be compliant.

It is likely that these decisions, and any others of this nature at the CCMA (of which it is reported that there are currently 117 awaiting hearing), will be reviewed at the Labour Court; and potentially higher courts, such as the Labour Appeal Court and Constitutional Court. It is only then that we will have a definitive answer as to how the judiciary will approach these matters.

That, however, should not deter employers from implementing such policies, as mentioned, provided that they comply with the Consolidated Directives; particularly as the Directives states that employers must perform a Risk Assessment and make a decision on whether or not to make vaccinations mandatory.

For more:

Compensation for adverse side effects to mandatory vaccinations.

Mandatory vaccination policies in the workplace.

Main image credit: Pixabay.com.

Carla Koutroulis is a Senior Associate at Consilium Legal, a boutique legal and business advisory.

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