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.
Read the full article here: https://za.andersen.com/news/insights/2022/01/damned-if-you-dont-vaccinate-the-ccma-considers-mandatory-vaccinations