Amalta Seevnarayan Dhanee | Attorney/Legal Services Division
With the roll out of the Covid-19 vaccines, most companies, institutions and organizations have encouraged all staff to vaccinate against the Covid-19 virus, whilst others have introduced vaccine mandates. In addition, many universities are now requiring students to furnish proof of vaccinations for the 2022 academic year.
As an employer, one needs to ensure the health and safety of all staff at the workplace however can one enforce a mandatory vaccination policy considering the religious beliefs, constitutional rights, and the like? Further does refusal to vaccinate tantamount to a valid dismissal?
According to the Commission for Conciliation, Mediation and Arbitration (CCMA), an employer has valid grounds for dismissing an employee for refusing to vaccinate without a valid cause. This was decided in the matter of Theresa Mulderiji / Goldrush Group (Case Number: GAJB 24054-21) brought before the commission.
Background of case
Theresa Mulderiji had been dismissed by her employer for refusing to vaccinate. Her employer had elected to introduce the vaccination mandate after having undertaken a risk assessment at the workplace, however employees could request for an exemption provided they had valid grounds. Ms Mulderiji had applied for an exemption however her application had been denied.
It was established that Ms Mulderiji is a high-risk employee considering the nature of the job which required her to interact with colleagues on a daily basis, in confined spaces. She could not be placed anywhere else within the company and as a result was dismissed based on incapacity.
She then approached the CCMA for relief including an alternative position within the organisation further stating it was her constitutional right to refuse the vaccine.
The commissioner noted that medically, nothing prevented her from taking the vaccine. Her refusal to adhere to the vaccine mandate prevented the employer from creating a safe workplace for its employees. Further the refusal by Ms Mulderiji to take the vaccine implied she is refusing to participate in creating a safe workplace environment for all employees. As a result, the commissioner found that Ms Mulderiji was unable to carry out her duties and as such had been rightfully dismissed.
Whilst the CCMA may have found in favour of the employer, this is not a binding decision. Employers are to exercise extreme caution in the dismissal of employees for refusing to vaccinate. Further, refusal to vaccinate does not automatically give the employer the right to dismiss an employee without taking into account the nature of the job and the employee’s pre-existing medical conditions.
Currently Solidarity (a South African Trade Union), has brought an application in the High Court of South Africa, against the University of the Free State challenging their mandatory vaccine policy. There is no doubt that in the near future, the Labour Court or Constitutional Court will provide more clarity on this point in the hope of addressing the uncertainties surrounding mandatory COVID-19 vaccinations.