One of the most common and controversial topics in Labour Relations currently, is whether an employer may introduce a mandatory vaccination policy. The common questions that we receive are, what are the consequences for the employer if such a policy is introduced, and what are the consequences if the employer dismisses employees should they refuse to be vaccinated.
The fundamentals of Labour Relations are common law duties for employees as well as the employer. It is trite that an employer should ensure a safe working environment for employees and the above-mentioned questions make it difficult when an employer is faced with a situation where operational requirements go hand-in-hand with balancing of an employee’s rights.
On the 28th of May 2022 the Department of Employment and Labour published a directive in terms of COVID-19 and a direction pertaining to Health and Safety in the workplace. Although the South African Government had confirmed that citizens may not be forced to vaccinate, the directives as mentioned above paved the way for the introduction of mandatory vaccinations in the workplace.
The question that must be answered is whether an employer is permitted to dismiss an employee who refuses to be vaccinated.
The case of Theresa Mulderij vs Goldrush Group caused widespread conflicting arguments in terms of the question above, however currently, the case confirms that a dismissal may be appropriate for a refusal to vaccinate. To summarize the case, the Respondent (Gold Rush) introduced a mandatory vaccination policy which Theresa Mulderij (the Applicant) refused to comply with. The Applicant was subsequently dismissed after due process had been followed.
What is evident from this case is the argument presented by the Applicant and the approach taken by the CCMA commissioner in terms of deeming the dismissal to be fair. The Applicant was employed as the group business-related and training officer and refused to be vaccinated in terms of her right to bodily integrity which is governed by Section 12(2) of the Constitution. The Applicant further argued inter alia that she was concerned about the side-effects of the vaccine and that the vaccine does not prevent an individual from contracting the virus. In turn the Respondent argued the reasons why the Applicant was required to be vaccinated and the extraordinary measures taken prior to implementing mandatory vaccinations.
The CCMA commissioner agreed with the Respondent that it was an inherent requirement for the Applicant to be vaccinated and further placed emphasis on the quote by the Deputy Judge President of the South Gauteng High Court in which he indicated the “duty of an individual to be civic minded.”
As indicated above, an employer has a common law duty to ensure a safe working environment. This allows employers the opportunity to conduct a risk assessment which will identify whether there is a need for mandatory vaccinations in terms of the inherent requirement or operational requirements of the business. The employer must further respect the rights of the employees in terms of legitimate representations on a refusal or inability to be vaccinated. Should a legitimate reason be established, the employer has an obligation to reasonably accommodate the employee or adapt the employee’s duties. If there is no reasonable accommodation available, it is not possible to adapt the employee’s duties, and the employer will suffer undue hardship in doing so or there are no legitimate reasons relating to the refusal, the employer may dismiss the employee based on the operational requirements of the business or an inherent requirement of the duties to be performed.
The main consideration in any of these cases will always be fairness, which requires an objective balancing of the rights of both the employer and the employee.
Senior Industrial Relations Consultant and Litigator.
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