Solidarity obo members and Another v Ernest Lowe, a Division of Hudaco Trading (Pty) Ltd (LC) (unreported case no J49/22, 14-3-2022) (Makhura AJ).
On 13 December 2021, the respondent employer issued a notice to its employees informing them that beginning the new year, only employees who were fully vaccinated or those who could produce a weekly negative COVID-19 test result; may enter its premises. In the same notice the employer further advised its employees that while it was not forcing employees to vaccinate, it would not contribute towards the weekly cost of the COVID-19 test should any employee decide not to vaccinate.
On 4 January 2022, the second respondent employee, was refused entry onto the employer’s premises because she could not provide a certificate demonstrating she was vaccinated or produce a negative COVID-19 test result.
Pursuant to an exchange of correspondence between the employer’s and the union’s legal practitioners, the union and employee filed an urgent application at the Labour Court (LC) on 21 January 2022 seeking an order that the employer’s admission policy was unlawful.
At the hearing the union’s case centred on the employer’s admission policy, which according to the union, unlawfully denied unvaccinated employees from tendering services and earning a salary under circumstances where they did not produce a weekly negative COVID-19 test result.
From the union’s standpoint the employer’s admission policy amounted to a unilateral change to terms and conditions of employment in that its members’ employment contracts did not provide for mandatory vaccination nor for an employee providing a weekly negative COVID-19 test result at their own expense; in order to tender their services.
In addition, the union argued that the employer’s admission and mandatory vaccination policies, at various instances, breached the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (GN R499 GG44700/11-6-2021), and/or the Occupational Health and Safety Act 85 of 1993 (OHSA), which legislations ought to be both read into the employees’ contracts of employment as implied, alternatively tacit terms.
The employer’s defence was that the union failed to demonstrate that its admission policy equated to a mandatory vaccination policy and hence disputed that it breached any employee’s employment contract or unilaterally changed the employees’ terms and conditions of employment.
Having found that the matter was urgent, the court dispensed with the employer’s ‘exception’ and ‘special plea’ and thereafter turned to the merits of the matter.
As a starting point the court reiterated that the union’s argument was underpinned by the alleged unlawfulness of the employer’s policy and not whether same was reasonable and/or fair. Thus, the issue before the court was whether the admission policy was in breach of the employee’s contracts of employment alternatively in breach the Directive by the Minister of Employment and Labour and/or the OHSA.
Addressing the first question, that being whether there was a breach or a unilateral change to the employees’ employment contracts, the court held:
‘The applicant referred to various provisions of the contract. Thereafter, they argued that the contract does “not contain any provision, to the effect that the second applicant’s continued employment is subject to producing a negative PCR test weekly”, and certainly not at her own expense.
Essentially, the applicants were unable to point to any specific term of the contract that was breached because of or by the adoption of the admission policy. Further, there was no provision of the contract of employment that the applicants alleged was unilaterally changed by the introduction of the admission policy.
In the absence of any specific reliance on a particular term and/or condition of the contract of employment that [had] been breached or unilaterally changed, I am unable to find that there was any breach of contract that occurred because of the introduction and implementation of the admission policy. Equally, there are no provisions of the contact of employment that need to be restored as the employee’s contract had not been changed’.
The second question was whether the admission policy breached the Directive or the OHSA. The Directive essentially sets out the procedure an employer must adopt prior to adopting a mandatory vaccination policy.
Was the employer’s admission policy a mandatory vaccination policy? If not, and according to the court, the employer could not be found wanting in respect of any alleged breach to the Directive or the OHSA.
The court found that the admission policy was not a mandatory vaccination policy. Employees who did not want to get vaccinated had the option of producing a negative COVID-19 test result every seven days to continue rendering services without the need to take the vaccine. The union was aware of the employer’s stance on this issue as early as mid-December 2021 yet choose not to establish in its founding affidavit why it took the view that the admission policy was a mandatory vaccination policy. While the court accepted that the employer encouraged its employees to be vaccinated, it did not force them to receive a vaccination by way of its admission policy. Following this finding the court held that the employer did not breach any term of the Directive or the OHSA.
The application was dismissed with no order as to costs.
Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).
This article was first published in De Rebus in 2022 (May) DR 37.
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