Amalta Seevnarayan-Dhanee | Attorney: Legal Services Division
With Covid-19 regulations repealed in June 2022, many South Africans are enjoying the freedoms that come with it, including not wearing face masks.
However, there are many exercising caution in letting go of their face masks to reduce the risk of contracting the Covid-19 virus.
In spite of the aforesaid regulations having been repealed, employers have a duty to ensure the health and safety of its employees in the workplace in terms of the Occupational Health and Safety Act 85 of 1993. Therefore, as an employer one can enforce mask wearing in the workplace, and it will be considered a valid rule, provided three elements are satisfied, namely: -
- the employer has the authority to make the rule in terms of the employment contract.
- the rule complies with applicable statutes or regulations; and
- the rule is reasonably required for the efficient, orderly, and safe conduct of the employer’s business.
Whilst an employer can elect to enforce a face mask policy in the workplace in order to ensure the health and safety of its employees, the implementation of a mandatory vaccine policy brings about its own labour challenges and complexities.
There have been many cases brought before the CCMA in respect of unfair dismissals for refusing to vaccinate, where awards had been made in favour of the employers. However, in the most recent matter Kgomotso Tshatshu vs Baroque Medical (Pty) Ltd the CCMA ruled that a mandatory vaccination policy in the workplace is unconstitutional.
Baroque Medical (Pty)Ltd is a medical company that elected to introduce and enforce a mandatory vaccination policy. The policy had been introduced in order to curb Covid-19 absenteeism and to ensure business continuity. In terms of the policy, an employee may be dismissed, on operational grounds in the event he/she refuse to vaccinate against Covid-19.
Ms Tshatshu, refused to take the Covid-19 vaccine for two reasons. Firstly, she has an adverse effect with the flu vaccine and was fearful that same may occur with the Covid-19 vaccine, and secondly the Covid-19 vaccine is still in an experimental phase. She went further to furnish medical certificates in respect of her reactions to the flu vaccine. Baroque Medical (Pty)Ltd was simply of the view that Ms Tshatshu had been in breach of the mandatory vaccination policy. Accordingly, her employment had been terminated and she did not receive her severance pay.
Ms Tshatshu had been employed as a senior inventory controller. She worked, in isolation, in the company boardroom, social distancing was strictly enforced in the workplace and meetings were conducted remotely. As a result, she did not see the need to be vaccinated.
In determining the validity of mandatory vaccination policy, the Commissioner stated that whilst the Code of Practice on Managing COVID-19 permits such a policy under certain circumstances, it does not make provision for a “blanket mandatory policy”. He further went on to state that there is no law in place, anywhere in the world which permits such a policy.
In his award, the Commissioner stated that “An employer has no right to formulate any Covid-19 vaccination mandate. It is the prerogative of government. Everyone, not just employees of a particular company, are equal before the law. The state has not unfairly discriminated against anyone in terms of vaccine policies. No legislation has been passed requiring all employees or citizens be vaccinated. When considering the equality clauses, freedom and security of the person, limitations of rights, the lack of reasonableness of the rule, government’s response to and the regulations it issued, it becomes unmistakably clear the right to issue any law of general application in respect of Covid-19 vaccinations rests with the government.”
He went on to rule the dismissal was unfair and unconstitutional. Baroque Medical (Pty)Ltd had been directed to compensate Ms Tshatshu in the sum of R270 000.00.
Note that this is a CCMA ruling which is not binding, and if challenged by Baroque Medical (Pty)Ltd, this issue will find its way to the Labour Court.
Whilst there is still uncertainty surrounding mandatory vaccination policies, there is nothing prohibiting employers from implementing a “face mask” policy for the purposes of creating a safe workplace environment for its employees in line with the Occupational Health and Safety Act.
While we are no longer required, by law, to wear facemasks, vaccines remain the best possible defence.