South Africa: Damned If You Don't Vaccinate: The CCMA Considers Mandatory Vaccinations

In this article, our employment team briefly canvasses two recent CCMA awards dealing with the contentious issue of workplace vaccinations

In the last week two CCMA awards have been issued and widely disseminated relating generally to the issue of mandatory workplace vaccinations. In both awards, the respective CCMA Commissioners have, in very broad terms, upheld what are seen to be “mandatory” workplace vaccination policies and practices. Proponents for and objectors to mandatory workplace vaccinations have made a lot of what is contained in these awards, each of course with their own take on the correctness thereof.

The findings made in the two awards, and what they mean for this issue, should not be over or under emphasised. What both awards make clear, however, is that how this issue will fall to be determined will depend on the facts of each case.

In the case of T Mulderij v Goldrush Group GAJB24054-21 (“Goldrush”), the CCMA upheld and found as fair an unvaccinated employee's dismissal based on the employee's permanent incapacity, caused by her refusal to be vaccinated in accordance with the employer's mandatory vaccination policy. The employee unsuccessfully applied for a Constitutional exemption based on her bodily integrity. According to the award, this exemption application which was presided over by a committee was refused because the employee was a high-risk individual who interacted with colleagues on a daily basis while in confined and uncontrolled spaces. The Commissioner in conclusion found that “the Applicant is permanently incapacitated on the basis of her decision to not getting vaccinated and implication refusing to participate in the creation of a safe working environment.”

In the case of Gideon J Kok v Ndaka Security and Services FSWK2448-21  (“Ndaka”), the issue for determination was whether the employer committed an unfair labour practice by denying the employee access to the workplace by blocking his access card because of his unwillingness to be vaccinated. In this case the employer inter alia provided security services to one of its (if not its largest) clients, Sasol Ltd, in Sasolburg, where the employee was stationed. The employer in Ndaka put the following proposition to the employee: either get vaccinated or alternatively present a negative COVID-19 test each week (at your own cost), or stay at home. The employee refused to be vaccinated and, on a few occasions presented negative COVID-19 test results, but was no longer willing to do so because he had to pay for the tests. Accordingly, and good on its threat, the employer denied the employee access to the workplace and instructed him to stay home. During the arbitration, the employer's contention was that the employee was not suspended as a result of his refusal to be vaccinated, but was merely instructed to stay at home or submit a weekly COVID-19 report. This, the employee contended, was not a genuine suspension. In the end, the Commissioner in Ndaka  found that the employee, contrary to the employer's contentions, had in fact been suspended, but that, in the circumstances, such suspension was not unfair, and the employer had not committed any unfair labour practice.

Much could be said about the respective Commissioner's reasoning in the two awards. In Goldrush the Commissioner appeared to heavily rely on an extra curial  internal memorandum written by the Honourable Deputy Judge President of the Johannesburg High Court Judge Sutherland. In Ndaka, it is not entirely clear whether the Commissioner in fact had the jurisdiction to arbitrate the matter or whether the matter was one which the Labour Court should have dealt with in the form of a discrimination dispute. The Commissioner also appeared to conduct an analysis in terms of section 36 of the Bill of Rights to determine whether or not the limitation of the employee's rights enshrined in section 12(2) of the Bill of Rights was reasonable and justifiable. Whether he was entitled to do this is open to debate.

The reasoning of the two Commissioners and their general pronouncements on, and approaches to, the legal issues involved, for immediate purposes, should be of lesser importance than the facts of the two matters.

What is clear from the facts of both matters is that the employers could defend their identification of employees who held positions for which it was appropriate and defensible to mandate vaccinations for. This is important. Unjustifiable declarations by employers that all employees need to be vaccinated may not be defensible. Employers will need to consider their workplaces and the job categories when determining which of its employees may be required to vaccinate. It is also clear from the facts of the matters that both employers engaged and consulted their employees in coming to their eventual decisions regarding mandatory vaccinations and took time to counsel them on the issues at play.

It is also apparent form the awards that employees' reliance on broad constitutional principles and perceived standards of fair conduct have not persuaded CCMA commissioners so far.

Undoubtably there will be more of these cases as employers get tired of their workplaces being disrupted by COVID-19 related issues. These awards will embolden employers to implement policies, which amongst other things, will mandate vaccinations and exclude employees from the workplace who have not been vaccinated, and which may result in employers terminating employment in certain cases where employees refuse to get vaccinated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.