Cape Town - Legal experts maintain that employers who have chosen to implement vaccine mandates, should not be deterred or dissuaded amid debates around the future of these policies, as Covid-19 restriction levels have eased and society returns to life before the virus.
This comes as a Gauteng woman formerly employed as a senior inventory controller at Baroque Medical, won a case at the Commission for Conciliation, Mediation and Arbitration (CCMA) against the company who entrenched her a year ago for not taking the Covid-19 vaccine.
Senior Commissioner, Richard Byrne held that the dismissal was substantively unfair and awarded the employee, Kgomotso Tshatshu, the maximum compensation, a year’s pay amounting to R279 600.
“When one considers the Equality Clause (section 9 of the Constitution), Freedom and security of the person (section 12 of the Constitution), limitation of rights (section 36 of the Constitution), the lack of reasonableness of the rule, government’s response to and the regulations it issued, it becomes unmistakably clear that the right to issue any law of general application in respect of Covid-19 vaccinations rests with government.
“An employer has no right to formulate any Covid-19 Vaccination Mandate. lt is the prerogative of government. The rule regarding vaccinations was therefore unreasonable. It follows that the dismissal of the Applicant was substantively unfair,” said Byrne.
The company had implemented a requirement that all employees be vaccinated, to minimise the transmission of Covid-19 and as an operational requirement in the sense that it would reduce the time that employees spend away from work due to illness.
Tshatshu had refused the vaccine for medical reasons, stating she had a negative response to a flu vaccine 10 years earlier. She was asked to provide proof, which she did in the form of a doctor’s note which was not accepted.
She was ultimately retrenched with no severance pay.
According to the employer, they obtained the view that they were in line with section 36 of the Constitution, which applied within the four walls of their company, and that the interests of the majority outweighed the interests of a few individuals.
They respected any person’s Constitutional right not to be vaccinated but, if the employee after consultation still refused to be vaccinated, a section 189 retrenchment process would follow.
Baroque Medical did not respond to requests for comment by deadline on Monday.
Labour lawyer Michael Bagraim these cases turn on the facts of each particular set of circumstances.
“People do lose cases if they did not consult properly. People have to be treated equally and must be given adequate time in which to make decisions. Furthermore, if the individual has a medical reason not to take the vaccination then that must be taken into account. There have been many cases where the mandatory vaccination was deemed to be adequate and fair. This will probably go on review to the labour court. The employer should have taken into account the medical reasons. The award is far too high,” Bagraim said.
Director in the employment law practice at Cliffe Dekker Hofmeyr, Imraan Mahomed, added: “This award should not dissuade any employer which has legitimate operational reasons from implementing a mandatory vaccine policy in its workplace from doing so. The award takes a strong constitutional line. It should however be noted that the CCMA is an administrative tribunal.
“What the case does however demonstrate and this is a point which CDH has been emphasising since early 2021 and quite consistently – risk assessments by employers are paramount and must be undertaken by employers. Also, where an employer embarks on a dismissal for operational requirements it must have a good business case (justifying the implementation of the policy) and consult with affected employees with an open mind.”
ENSafrica Employment executive, Lauren Salt said a key takeaway from this award is that employers, regardless of the reason for the imposition of a mandatory vaccination policy in the workplace, must ensure that, in any dispute relating to the reasonableness of the policy, they are able to lead evidence regarding the justification of mandatory vaccination in the workplace.
The National Employers Association of South Africa (NEASA) welcomed the ruling.
“NEASA has always held the view that the various directives and codes dealing with Covid-19 in the workplace were unconstitutional. It is our view that this award is correct in its reasoning. It should also be noted that since the withdrawal of all health regulations by the Minister of Health, and therefore according to Government’s own version, there is no longer a general health risk posed by Covid-19. Consequently, it would be near impossible for any employer to be able to justify that a specific Covid-19 health risk exists in its workplace in the absence of a general health risk in the community where Covid-19 is circulating freely,” the organisation said.
According to the National Health Department, vaccine uptake remained optional in South Africa. The total number of vaccines administered currently stands at 38 861 626.
Health Department spokesperson, Foster Mohale said: “The uptake is still not according to our plans, but we continue to remind people that lighting of Covid-19 regulations doesn't mean Covid-19 is over, thus we encourage them to vaccinate to protect themselves now and in case of resurgence of cases.”
Cape Times