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.