SOUTH AFRICA: CCMA DECIDES THAT AN EMPLOYER’S VACCINATION POLICY IS UNREASONABLE AND UNCONSTITUTIONAL – SHOULD EMPLOYERS BE CONCERNED?
In a recent decision of the Commission for Conciliation, Mediation and Arbitration (CCMA) in the matter between Kgomotso Tshatshu and Baroque Medical (Pty) Ltd, the commissioner found the retrenchment of an employee for refusing to comply with the employer’s vaccination policy to be substantively unfair, and awarded the employee the maximum compensation, equivalent to 12 months’ remuneration.
In his award, the commissioner expressed the view that an employer has ‘no right to formulate any Covid-19 Vaccination Mandate’ in the workplace, as this is the prerogative of Government; and that ‘Mandatory Vaccine Policies are not only unreasonable, but they have no place in our labour market’.
While the decision (and the views expressed therein) may be welcomed by many who have voiced their opposition to workplace vaccination policies, employers who have such policies in place need not necessarily be alarmed.
The decision is only one of many to have come out of the CCMA recently and does not create binding precedent. Further, while the ultimate outcome reached on the fairness of the employee’s dismissal may be reasonable in the circumstances of the case, there are, in our view, a number of issues with the commissioner’s findings.
Background to the case
The employer (Baroque Medical) introduced a compulsory Covid-19 vaccination policy at its workplace. In terms of the policy, vaccination was framed as an operational requirement, as it would reduce the time that employees spent away from work due to illness and ensure a safe work environment.
The policy required all employees to be vaccinated, failing which their services ‘may then be terminated for operational reasons’. It was recorded that there were no alternative positions or roles that did not require vaccination. Four employees were ultimately retrenched on this basis.
The employee in this case, a senior inventory controller, refused to be vaccinated because of her fear of the vaccination, explaining that she had experienced a previous negative response to a flu vaccine 10 years earlier. She also objected on Constitutional grounds, namely her right to bodily integrity, stating that the vaccine was experimental.
Baroque Medical required the employee to substantiate her refusal on medical grounds, but ultimately rejected the doctors’ notes she presented as being insufficient. Having rejected her grounds for refusing to vaccinate, the employer dismissed the employee and did not pay her severance pay.
Findings of the commissioner
The commissioner found the employer’s vaccine mandate to be an unreasonable rule. On this basis, the dismissal was found to be unfair. As for the process, the commissioner found that because the employer had chosen the route of retrenchment, it had to show that it went through a consultation process. Since it had already decided up front that any employee who refused to vaccinate would be dismissed, the consultations were largely lip-service.
In coming to his conclusions, the commissioner made, among others, the following findings:
- The State has not passed any legislation requiring all employees or citizens to vaccinate, nor have any state departments or the judiciary implemented compulsory vaccination policies for their employees. This is because doing so would amount to unfair discrimination and would be unreasonable.
- In terms of the Constitution, everyone has the right, among others, to bodily and psychological integrity and there is no requirement for employees to provide any reasons in this regard – they can simply exercise the right.
- Referring to section 36 of the Constitution, the commissioner reasoned that the employer’s vaccine mandate was like a ‘law of general application’, in that it was a general rule applicable to all employees in the company. However, as a company rule is not a law passed through the parliamentary and constitutionally entrenched process, it does not enjoy inherent legitimacy and is open to challenges as to reasonableness and fairness in addition to the limitations imposed by section 36.
- The Consolidated Occupational Health and Safety Direction, which applied at the time of the dispute, required a risk assessment to be performed by the employer which could identify certain employees to be vaccinated and it did not provide for or permit a blanket mandatory vaccination policy.
- The employer did not produce a risk assessment or lead any evidence on it. Accordingly, the employer could not demonstrate a link between the rule and its objective.
- There can be no value or objective to a mandatory vaccination policy in circumstances where only a handful of companies have such policies in place and an extremely small number of people adhere to them. Employees are also not confined to the workplace and will be exposed to others in their daily lives. Accordingly, such a workplace rule cannot be reasonable.
In our respectful view, the commissioner’s reasoning fails to appreciate the principle of subsidiarity and the fact that there is existing legislation (being the law of general application) which creates the legal framework for vaccination policies in the workplace.
In particular, the commissioner failed to consider the employer’s duty, in terms of the Occupational Health and Safety Act, to create and maintain, as far as reasonably practicable, a safe and healthy working environment. The commissioner also failed to consider the Hazardous Biological Agents Regulations and the Code of Practice on Managing Exposure to SARS-Cov-2 in the Workplace, which further inform this general duty. We discuss this legislative framework further in our previous newsflash here.
The commissioner does, however, rightly consider the reasonableness of the employer’s vaccination requirement with reference to its risk assessment and it appears that this may well be an area where the employer fell short.
Interestingly, in an earlier dismissal dispute involving one of Baroque Medical’s other employees (who had also been retrenched for refusing to vaccinate), a different commissioner accepted that the company had an appropriate risk assessment in place.
It is not clear why the risk assessment was not produced by the company in the present case, but the decision highlights the importance of leading evidence in this regard.
The commissioner in this case has undoubtedly made his views clear on workplace vaccination policies. However, the sweeping statements about vaccination policies in general should not be taken as the final pronouncement on the issue.
The decision to introduce a vaccination policy remains one that must be based on each employer’s individual circumstances. It is clear from the applicable regulations that any employer’s vaccination rule must be informed by its risk assessment and the particular hazards and working conditions that arise in its specific workplace. These risks, and the measures that can reasonably be taken to reduce them, must also be considered in light of the prevailing medical science.
Further, when it comes to the dismissal of an employee for failing or refusing to comply with an employer’s vaccination policy, employers will need to be able to show that the proper procedures were followed, both in introducing the policy and in exploring alternatives and reasonable accommodation measures. As is always the case, dismissal remains an act of last resort.