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Filter: COVID-19
How you can get fired for airing an opinion on WhatsApp

15 September 2022,  Tata Mokwayi

With the prevalence of social media and platforms for sharing information, is it possible that you can get fired for... a post or group message you made?

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Can you dismiss an employee for refusing to be vaccinated?

21 March 2022,  Sinenhlanhla Khoza

Many companies are struggling with the question of whether they can make it mandatory for their employees to be vaccinated... against the Covid-19 virus and, if necessary, even take disciplinary steps against an employee who refuses to be vaccinated. So what does our law say about this?

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Dismissal for refusing vaccination ruled to be fair

27 January 2022,  Sinenhlanhla Khoza

The publishing of the Consolidated Directive on occupational Health and Safety Measure in certain workplaces in June 2020 caused an... uproar due to the introduction of possible mandatory vaccination in certain workplaces. Since then,  many employers in the country have adopted policies which makes vaccination mandatory for their employees. This opened the door for an unvaccinated employee now possibly putting their own livelyhoods on the line by refusing to be vaccinated.  In a very recent ruling made by the CCMA, the Commissioner found the dismissal of the employee for refusing to take the vaccine, "substantively fair." In this particular case, the employee - employed as a business-related and training officer since 2018 - had refused to receive the vaccine in accordance with the Company’s Mandatory Vaccination Policy (MVP) and mainly contended that being mandated to take the vaccine contravened her right to bodily integrity as guaranteed by our Constitution. Upon her refusal, the company held an incapacity hearing for the employee and she was dismissed on the grounds of incapacity. Aggrieved by her dismissal, the employee then referred an unfair dismissal dispute to the CCMA.  However, the Commissioner noted in her ruling that proper procedure was followed by the company prior to the adoption of its MVP, and that various consultations were held with the unions and employees over a period of three months. The company has also made specialists available to address any questions their employees may have. This MVP also made provision for the employees to apply for exemption which was to be reviewed by the Mandatory Vaccination Policy Committee. While the employee had applied for such an exemption, it was refused on the grounds that the company viewed her as a high-risk employee who interacted a lot with colleagues daily while on duty in confined and unegulatable spaces.During the CCMA hearing, the employee contended further that she felt extreme social pressure and emotional discomfort in having to decide between her livelihood and accepting the vaccinate, and that she did not trust the vaccine because of fears regarding the effects it may have on her. In making her ruling, the Commissioner noted the earlier writing of Judge Roland Sutherland to his colleagues on the issue of vaccination in which he said “There has been, as yet, only mild protest that this (no vaccination no entry policy) violates freedom of choice … in my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic-minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of the individual.”Having heard the versions of both parties and having been influenced by Judge Sutherland’s sentiments, the Commissioner concluded that the employee’s refusal to be vaccinated rendered her “permanently incapacitated” and as such her dismissal was fair. The arbitration award, which the employee may still refer to the Labour Court for review, places emphasis on the competing interests between the employer and the employees - and how we are now, more than ever, living in times where the good of the greater good must take preference of those of an individual.  Employers should note though, that this case is not “one size fits all”, and are urged to follow a fair, specific and objective process for employees who refuse to be vaccinated. 

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Demystifying the 2021 property market

03 November 2021,  Libo van Aswegen

South African industry role-players such as Rhys Dyer, CEO of OOBA bond originators, have supporting data to confirm that the... Covid-19 pandemic has drastically changed consumer behaviour as well as banking trends, resulting in a surprising boom in the local residential property market over the past twelve months.

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Blog
Can you be dismissed for not wearing a face mask at work?

12 October 2021

I’m an HR manager and also responsible for health and safety at my workplace. Lately I’ve noticed an increasing number... of employees failing to keep their Covid masks on at work, despite regular warnings. My employer is very worried about this and has asked if we are allowed to dismiss employees that blatantly fail to adhere to our Covid-19 protocol of wearing a face mask. Not wearing a face mask is in my view very serious, but dismissing someone is also a serious step. Can someone be dismissed for not wearing their face mask?

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POPIA and remote working employees

14 September 2021,  Dr Damian Viviers

I’m the owner of a small financial services firm. With Covid-19, like many businesses, we enabled staff to work from... home. The arrangement is working well and we are contemplating retaining the option of remote work for some of our staff. Is there anything specific we need to do from a POPIA perspective in respect of such remote working staff?

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Can Covid-19 vaccinations be made compulsory by employers?

10 August 2021,  Sinenhlanhla Khoza

I work in a large retail store, and rumours are that my employer is going to require all employees to... be vaccinated for Covid-19. I don’t have a problem with anyone getting the vaccine, but I haven’t made up my mind yet as to whether I want to get vaccinated. What are my rights in this regard, and can my employer force me to get vaccinated?

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Dismissed for refusing the Covid-19 vaccine - is that fair?

17 March 2021,  Sinenhlanhla Khoza

With the words “I have been vaccinated!” being common among our healthcare workers these days, it is natural to start... wondering whether your job may be at risk for refusing to receive the COVID-19 vaccine. Right now there is no law in South Africa that obligates an employee to receive the Covid-19 vaccine.  In fact, there is no legislation which regulates the circumstances under which an employer may force an employee to undergo medical treatment as opposed to medical testing. Medical testing is defined by the Employment Equity Act to mean a test, inquiry or other means designed to establish an employee’s medical condition.Medical testing of an employee is prohibited unless legislation permits or requires the testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. The Constitution of the Republic of South Africa guarantees our rights to bodily integrity, privacy and security over one’s body. However, it is common knowledge that our constitutional rights are not absolute and may be limited under certain circumstances. An employee may refuse to take the vaccination over concerns of possible adverse reaction to the vaccine, religious and cultural beliefs and the employer may not unfairly discriminate against an employee who refuses to receive the Covid-19 vaccine for whatever personal and/or medical reasons.  Notwithstanding the above, an employee may be compelled to receive the Covid-19 vaccine where failure to do so may create a greater risk to the public health. This may be in instances where the employee’s duties call for heightened levels of contact with the general public. In this regard, employees must be aware that employers are obligated to provide and maintain a safety working environment in so far as it is reasonably practicable to do so.  Consent remains essential in matters involving the personal affairs of the employee, and the employee must have given informed consent before any medical treatment is administered. An employer who therefore dismisses an employee for refusing to receive the Covid-19 vaccination may be under a strenuous duty to prove that the instruction to the employee was a reasonable one and that the failure by the employee to follow such an instruction constituted insubordination which warranted the dismissal. The consequence of this act of insubordination needs to be that it creates a greater risk to the health of other employees and renders it nearly impossible for the employer to maintain a safe working environment as required by law.While there is a lacuna in our employment legislation for the compulsory administration of the Covid-19 vaccine, such treatment may be permitted by the employment conditions, social policy or the inherent requirements of a job. This requires that a thorough balancing of the employer’s obligations in terms of maintaining safety in the working place must be done against the conflicting rights of the employees not to be unfairly discriminated against or victimised for exercising their rights in terms of the applicable legislation.In this, instance if the Employer can prove on the specific facts of this case that dismissal was an appropriate and fair sanction, then the dismissal would be fair. Generally though, discipline ought to be imposed in a corrective and progressive manner which means that dismissal would only be reserved for the gravest of offences.

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Can my employee refuse to come to work because of Covid-19?

16 March 2021,  Sinenhlanhla Khoza

Although we are nearing the tail-end of the Covid-pandemic, I still have a number of my employees that are refusing... to come to work because of Covid-19. I’ve tolerated them being at home, but my problem is that there is very little work they can do from home, yet I have to pay them. Can I force them to come back?

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The final say on business interruption insurance and Covid-19

16 March 2021

I’ve been following the media reports relating to the Café Chameleon case and their claim that their business interruption insurance... covers losses suffered due to Covid-19. The last I heard was that this case was being appealed by the insurer. I have a similar argument going with my insurers, and would like to know whether there is any finality yet on the matter.

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Wedding cancelled due to Covid-19: can I get my money back?

19 January 2021,  Jaco Van den Berg

Since Covid-19 struck, it is no longer unusual to hear of engaged couples whose wedding date had been fixed, whose... invites had gone out long before and who had paid for everything already including the total venue costs - only for unexpected Covid-19 regulations to suddenly be implemented squashing all their romantic plans in one, fell swoop. The big question is, now that the wedding had to be cancelled, can the couple get their money back?Yet again with the recent amended Covid-19 regulations declared at the end of December 2020, many weddings had to be postponed or cancelled on short notice. It is important to know your rights if you already paid the wedding service providers and the wedding is now cancelled due to the change in regulations.The Regulations issued in terms of the Disaster Management Act, defines a gathering as follows:‘gathering’ means any assembly, concourse or procession in or on—(a) any public road, as defined in the National Road Traffic Act, or(b) any other building, place or premises, including wholly or partly in the open air, and including, but not limited to, any premises or place used for any sporting, entertainment, funeral, recreational, religious, or cultural purposes; but excludes a workplace and a place of residence for those persons ordinarily residing at the residence.The amended level 3 lockdown regulations that are now in force, prohibits most gatherings or social gatherings, including weddings. Many contracts with service providers, like the wedding venue, will contain a force majeure clause. Force majeure refers to an event or occurrence, which renders contractual performance impossible. The term is synonymous with the term vis maior.Force majeure clauses allow a party to a contract to escape the normal consequences of non-performance or late performance of their obligations in terms of the contract, because of an unforeseeable or unavoidable event. This can include acts of God, acts of government, natural disasters, epidemics, pandemics, terrorism or even war. The clause will allow a party to suspend its obligation in terms of the agreement for the duration of the force majeure event.If, however, there is no force majeure clause in the contract with a wedding service provider, and the service provider refuses to refund the money paid when a wedding is cancelled due to the new regulations, the other party has a possible claim against the service provider based on the legal remedy known as unjustified enrichment. The term "unjustified enrichment" is used to describe the situation which occurs when one party is enriched and the other party correspondingly impoverished, while the enrichment is at the expense of the impoverished party and unjustified, that is, without there being a legal ground for the retention of the enrichment by the enriched party. From the fact of such unjustified enrichment an obligation arises by operation of law in terms of which the enriched party has, in specified circumstances, a duty to restore the enrichment to the impoverished party up to the level of the latter's impoverishment.This means if you paid a wedding service provider and the wedding could not proceed due to the force majeure event (in this case, Covid-19), the wedding service provider might have been enriched at your expense, and you might well have a claim based on unjustified enrichment against them.Most probably the claim will be against the venue provider, band or other service providers who has not performed their obligation prior to the cancelation of the wedding. Unfortunately, if the service provider already performed, such as delivering the wedding cake, no enrichment claim will be possible.Each matter will have to be judged on the relevant facts and it is best to contact an attorney to advise you on a possible claim.

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Can I be forced to take the Covid-vaccine?

15 January 2021,  Jonathan Le Riche

Something many people have been wondering about, is whether or not the government could make it compulsory for us to... take the Covid-vaccine.To answer this, we need to start with our country’s Constitution, the cornerstone of our law.  South Africans all have the right to bodily and psychological integrity, which on face value should mean that the vaccine should remain each South African’s own choice. This right, however, is an individual right, but we also have collective rights to take into account. We know that some people suffer a lot more from Covid-19 than others. Thus, choosing to not vaccinate yourself may be costly for other people in the community. Naturally there are many different opinions when it comes to a hot topic such as this, one of which is that of the University of Oxford ethicist Alberto Giubilini, who suggests that the vaccine should be compulsory because it would be less burdensome to everyone than the current lockdowns which are in place all over the world. Then there are also various misconceptions and conspiracy theories muddying the issue, such as the talk of so-called “microchips” in the vaccine and even of its rumoured ability to “alter one’s DNA”. In my opinion, it would then be a better idea to focus on improving and increasing education and the dissemination of proper, accurate and verified information on Covid-vaccines to thereby eradicate these falsities, rather than making it mandatory to get immunised against the virus -which may come across as somewhat suspicious to some and simply increase people’s resistance against getting vaccinated.It is one matter to decide for yourself, but in some instances, employers may make it compulsory for their employees to be vaccinated. Certain countries may also make it a requirement before entry for travellers. Would this be allowed? Well, these are not new concepts. In the medical profession for example Hepatitis B injections are compulsory. Yellow fever vaccines are also compulsory to be allowed entry to certain countries. In this instance I feel it is necessary to consider the ultimate goal behind the vaccine, which is to protect and save lives. It is precisely this protection of the collective right of a community which will probably outweigh the rights of the individual. So, what can we take from this? It can possibly become a requirement in the workplace or for travelling purposes. Your own medical aid may well also make the vaccine a requirement since preventing their members from getting infected, could potentially save them quite a lot on hospital expenses. Yet it is unlikely that the government can make it compulsory for us as South Africans to take the Covid-19 vaccine. 

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