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.