Employers have a duty to take reasonable care of the health and safety of their employees in all circumstances of employment. As the COVID-19 pandemic evolves, this duty includes the prevention of the spread of the virus in the workplace. Vaccines are effective tools, in most cases, to mitigate infection and transmission of the virus. Understandably, some employers have implemented vaccine policies to provide a safe workplace for their employees. However, there are reasons that not all employees are willing or able to comply with vaccine mandate policies.
The case law on vaccine mandates in the workplace can best be described as developing. Notwithstanding, progress has been made. Briefly outlined below are some noteworthy cases of the progress.
In Bessick v Baroque Medical (Pty) Ltd (CCMA) (unreported case no WECT13083-21, 9-5-2022), the employer implemented a compulsory COVID-19 vaccination policy as an operational requirement. The business of the employer is an essential service that supplies medical devices to various medical institutions. The applicant refused to vaccinate based on medical, personal and religious reasons, as well as her ‘constitutional right to bodily integrity’ (para 41). Alternative employment could not be secured for the applicant; therefore, she was dismissed for reasons based on the employer’s operational requirements. The applicant referred her dismissal to the Commission for Conciliation Mediation and Arbitration (CCMA) for arbitration. The Commissioner had to determine whether the applicant was unfairly dismissed, only the substantive fairness of the dismissal was challenged, and if so, whether she was entitled to severance pay.
The applicant did not challenge the risk assessment and the vaccination policy. Notwithstanding, ‘the Commissioner found that the risk assessment conducted by the [employer] as well as the mandatory vaccination policy … [were in accordance with] the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces [the Direction]’ (Sibusiso Dube ‘South Africa: CCMA finds retrenchment of employee and non-payment of severance for refusing to comply with vaccination policy fair’ (www.bowmanslaw.com, accessed 3-7-2022)). The Commissioner held that alternative employment for the employee was not feasible because the employer required all staff members to vaccinate. Therefore, the applicants’ dismissal was substantively fair. In regard to all other objections put forward by the applicant against the vaccination policy, the Commissioner found no justifiable basis. Consequently, the applicant’s decision not to adhere to the vaccination policy was ‘unreasonable’ and she was thus ‘not entitled to any severance pay’ (para 79).
Section 73A of the Basic Conditions of Employment Act 75 of 1997 (BCEA) applies to the referral of disputes relating to any failure to pay an amount owing to a person who earns below the threshold in terms of the BCEA, the National Minimum Wage Act 9 of 2018, a contract of employment, a sectoral determination, or a collective agreement. In Cousins v Bill Buchanan Association [2022] 1 BALR 46 (CCMA), the employee’s attendance at work was disturbed by the COVID-19 pandemic and the civil unrest that took place in KwaZulu-Natal, in July 2021. The employee referred a claims dispute to the CCMA in terms of s 73A of the BCEA. Therein, she claimed that her employer owed her money for COVID-19 tests, deductions from her unpaid leave and loss of income. The Commissioner had to determine whether the costs incurred by the employee fell under the scope of s 73A of the BCEA.
The Commissioner held that s 73A of the BCEA does not extend to the employee’s claim for the cost of her COVID-19 tests or loss of income as the section only covers payment for which it expressly provides. The Commissioner also held that the employee could not claim for unpaid leave from her employer as she had exhausted her sick leave days and did not report for duty during the unrest. Notwithstanding, the Commissioner found that the employee could apply ‘for an illness benefit in terms of clause 4 of the Directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme’ (para 13). The CCMA dismissed the employee’s case.
With no end in sight to the COVID-19 pandemic, disputes pertaining to vaccine mandates are most likely to continue percolating through to the CCMA and the courts. The above case decisions reveal that the importance of context cannot be understated when assessing the reasonableness of one’s conduct in any dispute pertaining to vaccine mandates at work. Employers should remain aware of these decisions as they provide much needed guidance on how to implement vaccine mandates.
Tinotenda Mparutsa LLB LLM (UJ) is a researcher in Johannesburg.
This article was first published in De Rebus in 2022 (August) DR 31.
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