CCMA dismissal for mandatory vaccine refusal
27 January 2022
On 21 January 2022, the first CCMA decision relating to mandatory vaccinations in the workplace was issued. The Commissioner found that the employee's dismissal for incapacity arising from her refusal to vaccinate was both procedurally and substantively fair. It remains to be seen whether the decision of this commissioner will be taken on review to the Labour Court.
In reaching his decision, the Commissioner considered the following evidence:
The employer complied with the Consolidated Direction on Occupational Health and Safety in Certain Workplaces by:
conducting extensive consultations with all relevant stakeholders (trade unions and employees);
and permitting employees to apply for an exemption from the mandatory vaccination policy on constitutional or medical grounds.
The basis for implementing the mandatory vaccination policy at the workplace is to ensure the health and safety of employees.
The employee owes a duty of care to other employees to safeguard them from harm.
The employee was dismissed, following a hearing in which she was given an opportunity to state her case, on 28 October 2021. This was prior to the discovery of the Omicron variant.
The most recent scientific data indicates that the Omicron variant is highly transmissible amongst both vaccinated and non-vaccinated individuals. Many employees may now, in future cases, attempt to argue that vaccination does not protect against the spread of infection (like it did with the Delta variant because those that were vaccinated had a lower viral load than those who were not vaccinated and were therefore less transmissible) and that the basis for employers implementing a mandatory vaccination policy in the workplace is now moot.
Employers may argue, in response, that the Occupational Health and Safety Act and the Mine Health and Safety Act remain applicable insofar as the employer has a duty of care towards its employees. There is evidence that indicates that those who are vaccinated and who contract the virus are less likely to suffer from severe illness, hospitalisation or death. There is also evidence that the significant majority of those who are being hospitalised with COVID-19 complications are not vaccinated. In addition, vaccination may protect against long COVID. Employers remain obliged to ensure that their employees are safe and healthy.
There is data that indicates that long COVID can be particularly debilitating and may affect an employee's ability to continue to perform their functions. Medical experts have indicated that vaccination is an effective preventive measure against long COVID, regardless of which variant is contracted.
Many employers, prior to vaccinations becoming available, chose to implement additional sick leave provisions for those who were severely ill and had not had an opportunity to be vaccinated. Employers would not be obliged to provide employees with further sick leave entitlement on the basis that they contracted COVID and now suffer from long COVID due to their refusal to be vaccinated.
Interestingly, in many jurisdictions overseas, employers are reducing the sick pay entitlement of employees who refuse to vaccinate which implies that employers are of the view that failing to vaccinate and protect yourself against severe illness, hospitalisation or death is in contravention of your duty of care towards your employer.
Issued by Jacqui Reed, Employment lawyer and Senior Associate at Herbert Smith Freehills, 27 January 2022
