SOUTH AFRICA: LABOUR COURT FINDS EMPLOYER’S ADMISSION POLICY TO BE LAWFUL AND NOT A MANDATORY VACCINATION POLICY
On 14 January 2022, after an urgent application was brought to the Labour Court by Solidarity on behalf of its members, the Labour Court delivered a judgment in terms of which it held that the employer’s admission policy is lawful.
In the case of Solidarity obo Members & 1 Other vs Ernest Lowe, A Division of Hudago Trading (Pty) Ltd [sic], the applicants approached the Court on an urgent basis for an order declaring Hudaco’s admission policy to be unlawful and in breach of the second applicant’s employment contract.
On 6 December 2021, the respondent addressed a letter to its employees informing them that it was in the process of formalising a policy that would be effective from 10 January 2022 aimed at, among others, providing a working environment in which all employees can be as safe from Covid-19 as possible.
In terms of this policy, admission to the employer’s premises would only be granted to employees who have been fully vaccinated or to those who produce a negative Covid-19 test result that is not older than seven days, at the employee’s cost.
The second applicant informed the employer that she was unwilling to receive the Covid-19 vaccination but that she would undergo the weekly Covid-19 test at the employer’s expense. In response, the second applicant was notified that she would not be allowed access to the employer’s premises and that the ‘no-work-no-pay’ principle would apply.
In January 2022 the second applicant reported for duty and was immediately requested to leave the employer’s premises as she was unvaccinated and had failed to produce a negative PCR Covid-19 test result.
In the Labour Court proceedings, the applicants argued that the employer had breached the second applicant’s employment contract as the contract does not contain any requirement or condition of mandatory vaccination or a requirement for the second applicant to pay for a Covid-19 test; and that the admission policy, which constitutes a mandatory vaccination policy, does not comply with the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Direction) and the Occupational Health and Safety Act 85 of 1993 (OHSA).
The applicants further argued that the implementation of the admission policy amounted to a unilateral change in the terms and conditions of the second applicant’s employment contract and was unlawful.
The respondent disputed that the admission policy constitutes a mandatory vaccination policy and that the admission policy was introduced in compliance with sections 8 and 9 of the OHSA. Further, the respondent argued that it was not mandatory for employees to be vaccinated to gain access to the employer’s premises as employees have the option of producing a negative Covid-19 test result.
In reaching its finding, the Court emphasised that this case did not relate to the fairness or reasonableness of the admission policy or the second applicant’s Constitutional rights or non-compliance with the Employment Equity Act, 55 of 1998. The Court held that:
- the applicants failed to point to any specific term of the contract that was breached because of the adoption of the admission policy;
- there was no provision in the contract of employment that the applicants alleged was unilaterally changed by the introduction of the admission policy;
- the admission policy does not constitute a mandatory vaccination policy as it did not require employees to disclose their vaccination status nor has it determined that only vaccinated employees would be allowed access to the employer’s premises; and
- the admission policy is not in breach of the Direction and OHSA.
It was therefore held that the respondent’s admission policy is not unlawful and the applicants’ case was dismissed.
It is noteworthy that the Court also found that the employer had acted in accordance with the OHSA and the provisions of the Direction in its duty to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to its employees’ health, by implementing the admission policy.
The inference to be drawn from this is that employers can successfully rely on the OHSA to implement policies similar to the respondent’s admission policy. Where employers seek to implement a mandatory vaccination policy, then the provisions of the OHSA read together with the Direction need to be followed to the letter.
The courts are yet to determine whether employees should incur the costs associated with mandatory vaccination/admission policies and whether refusal to comply with such policies entitles an employer to withhold remuneration based on the no-work-no-pay principle.
Employers are encouraged to seek legal advice before implementing any policies that seek to deny employees admission to the workplace for reasons associated with Covid-19 and any disciplinary action that may follow.