There is no question that the COVID-19 pandemic has caused serious havoc in the lives of many people around the world. Many companies and businesses have been affected and in their efforts to curtail the spread of the virus, many companies adopted mandatory vaccination policies for their employees and stakeholders. It is common cause that mandatory vaccinations have been opposed by many employees for a variety of reasons. In South Africa, for example, the opposition of vaccinations led to several disputes being referred to the Commission for Conciliation, Mediation and Arbitration (CCMA). These disputes emanate from the fact that employers terminated employment contracts of employees who refused to vaccinate. The CCMA has issued awards regarding mandatory vaccinations. In this article, we briefly explore the following questions:
The case of Mulderij v Goldrush Group (CCMA) (case no GAJB24054-21, 21-1-2022) is one of the CCMA matters wherein the issue of mandatory vaccination was grappled with. In this matter, the employee was dismissed on the grounds of incapacity due to her refusal to accept the mandatory vaccine. She submitted that her refusal to vaccinate is based on her constitutional right to bodily and psychological integrity (s 12(2) of the Constitution). In reaching his decision, the commissioner took into consideration the steps that the employer put in place in developing the mandatory vaccination policy, which included the identifying of the risk and health hazards that the employees were exposed to and the consultations with the employees regarding the mandatory vaccination policy. The commissioner ruled in favour of the employer – that the dismissal was substantively fair. He held that the employee is permanently incapacitated due to her refusal to vaccinate and thus failed to participate in a safe working environment.
In Bessick v Baroque Medical Pty (Ltd) (CCMA) (case no WECT13083-21, 9-5-2022), the employee was dismissed for failure and/or refusal to comply with the employer’s mandatory vaccination policy. The dismissal of the employee was based on operational grounds:
‘The basis for the policy was to ensure that staff members were not infected by the virus and also to sustain the operations of the [employer] by attempting to prevent the transmission from unvaccinated non-vaccinated staff. The attempt was also to prevent absenteeism as a result of the virus’ (at para 6).
The CCMA considered the employee’s reasons for not taking the vaccination – that is, bodily integrity, medical condition, and the employee’s belief that there has not been thorough research conducted on the vaccines. The commissioner held that the employee’s reasons for opposing mandatory vaccination have no basis and ruled that the dismissal due to operational requirements was substantively and procedurally fair.
The CCMA arbitration awards do not create precedent. This means that commissioners are not bound by previous awards. They can rule differently. For example, less than two months after the Bessick ruling, the CCMA found itself in the same situation with the same employer in the case of Tshatshu v Baroque Medical (Pty) Ltd (CCMA) (case no GAJB20811-21, 22-6-2022), where similar facts were dealt with, and it ruled differently. The employer submitted that any limitation on a constitutional right was justified in terms of s 36 of the Constitution.
In this ruling, the commissioner assessed the reasonableness of mandatory vaccination policies, considering the Constitution and government regulations. The commissioner stated that:
‘When one considers the equality clause (section 9 of the Constitution), freedom and security of the person (section 12 of the Constitution), limitation of rights (section 36 of the Constitution), the lack of reasonableness of the rule, governments response to and the Regulation it issued, it becomes unmistakably clear that the right to issue any law of general application in respect of COVID-19 vaccinations rests with government. An employer has no right to formulate any COVID-19 vaccination mandates. It is the prerogative of government. … It follows that the dismissal of the applicant was substantively unfair’.
The previous awards – where the CCMA ruled that dismissal due to refusal to vaccinate was substantively fair – convinced most people, including companies, that mandatory vaccinations constitute justifiable limitation of the Constitutional rights. It seems, from the CCMA matters, that the core purpose for the adoption of compulsory vaccination is to ensure continuity of the service. Employers fear that unvaccinated employees would be infected and thus be forced to spend several days at home or hospital. This, in effect, affects productivity. Part of the argument advanced by the employers is that vaccinations protect the employee and those around them. This is factually not true. What is known is that vaccinations prevent the severity of the virus.
The latest CCMA award has ignited the debate. We are of the view that the CCMA finally saw the light. South African Labour Courts (LC) have not ruled on these matters. However, courts in some of the foreign jurisdictions have ruled on mandatory vaccination and the CCMA could have expanded its discussion by considering foreign case law. For example, in Ryan Yardley and Others v Minister for Workplace Relations and Safety and Others CIV-2022-485-000001 [2022] NZHC 291, the New Zealand High Court held as follows:
‘The evidence suggesting that the Omicron variant in particular breaks through any vaccination barrier means that I am not satisfied that there is a real threat to the continuity of these essential services that the [policy] materially addresses.
…
COVID-19 clearly involves a threat to the continuity of … services. That is because the Omicron variant in particular is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the [policy] makes a material difference, including because of the expert evidence before the court on the effects of vaccination on COVID-19 including the Delta and Omicron variants.
… The evidence shows that vaccination significantly improves the prospects of avoiding serious illness and death, even with the Omicron variant.’
The previous CCMA awards failed to consider the apparent aspect that were considered by the court in Ryan Yardley case. Whether one is vaccinated or not, they will still be infected by the virus. What the employers have done is thinking that, since the virus has been considered deadly, it would be justifiable to limit the constitutional rights of their employees without further considerations. Failure to successfully convince employees – to vaccinate – with concrete scientific evidence meant that employers had to make vaccination mandatory through internal policies. The employers failed to take cognisance of the concerns of their employees regarding the safety of the vaccines.
What is clear from these matters is that employers failed to properly justify the limitation of s 12(2) of the Constitution. The limitation clause in s 36 of the Constitution lays down a test (two-stage approach test). It does not appear as if this test was considered when the employers adopted their policies. Yes, the working environment must be safe, and it would suffice to have the vaccination policy and other measures to curb the effect of COVID-19. A flexible and carefully drafted vaccination policy would have prevented these disputes. Having said that, we are now sitting with some confusion – which award sets precedent? Going forward, are employers going to keep their mandatory vaccination policies? Reliance, for scrapping the policies, cannot be placed on the latest CCMA award because a CCMA award does not create a precedent. It is best that one of these awards (if not all) be taken on review so that we get a precedent from the LC.
Khwezi Mqoboli BSocSci (Rhodes) LLB (Wits) is a candidate legal practitioner in Pretoria and Mziwamadoda Nondima BA LLB (Rhodes) is a legal practitioner at Nondima Attorneys Inc in East London.
This article was first published in De Rebus in 2022 (Oct) DR 8.
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