The unprecedented nature of the Covid-19 pandemic changed many of our lives forever. Due to the uncertainty and deadly nature of the virus, declaring a National State of Disaster in South Africa, during March 2020, was deemed necessary. While under the National State of Disaster, various restrictions were enforced to limit and control the spread of the virus. These included restrictions which directly impacted employees and their workplaces.
Covid-19 vaccinations and vaccine mandates
In and during 2021, Covid-19 vaccinations became available to the public, released according to age group and health status. With the rise of “anti-vaxxers” and the confusion regarding the safety of the vaccine, many opted out of taking it. Whilst many were happy about President Ramaphosa announcing that the vaccine would not be made mandatory, multiple private institutions including universities and workplaces introduced vaccine mandates. This of course raised the question as to whether employees may be compelled by their employers into taking the vaccine.
Employers are required, in terms of the Occupational Health and Safety Act, to screen their employees for any symptoms of Covid-19 when arriving at the workplace and reporting to work. This screening involves a requirement on employees to inform their employer should they be experiencing these symptoms at work, as well as externally observing Covid-19 symptoms such as difficulty breathing and coughing.
What the courts say about mandatory vaccinations
The issue of mandatory vaccinations was eventually taken to the Labour court in Solidarity obo Members and Another v Ernest Lowe, A Division of Hudago Trading (Pty) Ltd in February 2022 (“the Solidarity judgment”). In this matter, Solidarity (“the employees union”) took Ernest Lowe (“the employer”) to court, to challenge the “admissions policy” on the basis of unlawfulness, due to said policy requiring employees to be vaccinated before entering the workplace. The contentious employer’s policy in this case required that all employees either get vaccinated, or produce a weekly negative Covid-19 test, at their own cost.
The Court found that the policy was not mandatory, in that employees were not required to disclose their vaccination status and it was not determined that only vaccinated employees could enter the premises (provided, weekly negative Covid-19 test results are submitted). The Court also found that the policy was not in breach with the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces dated 11 June 2021 nor the Occupational Health and Safety Act. Unfortunately, based on these findings, the Court did not determine whether the employer’s policy was fair or lawful.
In and during 2022, both before and after the Solidarity judgment, several decisions were made by the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) regarding the unlawfulness of vaccination policies. However, CCMA decisions are not binding and therefore cannot be relied upon to enforce such policies.
The first of such decisions was made on 21 January 2022, in Mulderij v The Goldrush Group.
The CCMA ruling on incapacity to work
Ms Mulderij was dismissed from The Goldrush Group due to refusing to take the Covid-19 vaccine. This resulted in dismissal due to incapacity.
In making this decision, the CCMA made use of the incapacity analysis – this is used to determine whether the employee in question is in fact, incapacitated in doing their work-related duties. Incapacity in the workplace refers to being unable to perform one’s duties in accordance with the employer’s standards. This is a ground for dismissal and so, when an employee is declared “incapacitated,” dismissal is regarded as substantively fair, subject to an employer complying with the Incapacity Code of Good Practice, in item 10 and 11 of Schedule 8 of the Labour Relations Act.
In terms of the Employment Equity Act, employers may not compel any of their employees to undergo a medical examination and where the employee opts not to; decisions requiring such examination are to be made on the available facts. Arbitrators may speculate negatively in such a situation.
Naturally, medical examinations by qualified medical professionals deeming their patient (viz. the employee) as “better off without the vaccine”, may be enough to exempt such employee from vaccination mandates. However, in this matter, the medical professional refused to do so.
Based on these facts, the CCMA agreed that Ms Mulderij was permanently incapacitated by refusing to get vaccinated and in effect, refusing to create a safe work environment.
Shortly thereafter, Kok v Ndaka Security and Services was heard.
The numerous other CCMA rulings on dismissals
In this matter, Mr Kok approached the CCMA for relief following his dismissal for misconduct, as a frontline worker from his place of work at Ndaka Security and Services. Mr Kok, much like Ms Mulderij, was told to either vaccinate or produce weekly negative Covid-19 test results, at his own expense.
After evaluating the options given to Mr Kok and the nature of his work, the CCMA found the vaccination policy fair. During his argument, Mr Kok stated that his Christian faith prohibited him from taking the vaccine; however, he failed to provide sufficient evidence regarding this.
Similarly, in March 2022, Dale Dreyden approached the CCMA for relief on being, in his opinion, dismissed in a substantively and procedurally unfair manner. In this matter, Dreyden v Duncan Korabie Attorneys, Mr Dreyden was dismissed without notice due to his refusal to vaccinate.
The employer in question was a law firm and the owner of the firm, Mr Korabie, was gravely ill. Along with this, two other employees within the workplace have co-morbidities. However, in this instance, alternative options to working in the office were not possible for two reasons: firstly, the firm previously faced cyber-attacks which threatened the integrity of the legal profession; and secondly, due to Mr Dreyden’s position being that of a Candidate Attorney, he was to be supervised and therefore, contactless working conditions would defeat the purpose of serving his practical vocational training, as required in terms of the Legal Practice Act.
In this matter, the CCMA found the dismissal to be substantively fair. However, due to the respondent not informing the applicant of his rights in the decision-making process of receiving a vaccination, not discussing his refusal and/or possible alternatives, along with the lack of counselling regarding this and insufficient consultation in dismissing him, the dismissal was found to be procedurally unfair. Mr Dreyden thereafter received relief in one months’ compensation as well as 4 weeks’ notice pay.
A month later, the CCMA was approached by a dismissed employee, Ms. Zaphia September (“Ms September”). In this matter, September v Inyosi Empowerment, Ms September sought relief after being dismissed at the end of her probation period based on not having been vaccinated against Covid-19 – despite not refusing to do so.
During Ms September’s three month probation period at the company, a workshop was arranged by the company in respect of vaccinations. After this workshop, despite not being vaccinated, Ms September was gravitating towards receiving the vaccine. However, she had not made up her mind at this point. After being notified of this, the company gave her two weeks’ notice of dismissal. She felt this was unfair as other employees had been granted additional time to vaccinate. She was to either decide by the following day or receive the vaccine within those two weeks should she wish to continue at the company.
The employer later attempted to retract this and give Ms September an extension period however, Ms September refused. This dispute was then referred to the CCMA. The company argued that her vaccination status resulted in her being regarded as incompetent for the position, however the CCMA had a different view. The CCMA found that unless the vaccination policy was in place and notified to Ms September before or during her probation, it cannot be a requirement imposed on her. Another factor the CCMA considered was that the policy had not yet been implemented.
The CCMA found the dismissal both substantively and procedurally unfair as she was competent and had not committed any misconduct. It also found that had Ms. September not, in good faith, initiated the discussion regarding the vaccination, her appointment would likely have been confirmed.
In the CCMA decision of Bessick v Baroque Medical (Pty) Ltd, is where it was determined whether the employee’s dismissal, on the basis of refusing to vaccinate, was unfair, and whether she was to receive severance pay in accordance with this. In this matter, the employee’s refusal to vaccinate amounted to dismissal as per operational requirements.
Ms Bessick refused to vaccinate on the grounds of medical, religious and personal reasons, none of which had any merit in this matter. The CCMA found the employer’s policy justifiable and operational as a risk assessment was conducted and nothing to the contrary of such risk assessment was taken to the Commission.
The Commissioner found the dismissal of Ms Bessick substantively fair due to her non-compliance in receiving the vaccine rendering her unable to continue her duties at the company. Ms Bessick did not challenge procedural unfairness.
Further, the CCMA found that granting Ms Bessick severance pay would be unfair as she had the choice to vaccinate and thus continue her employment, which she refused without a legal basis.
On the exact date that the regulations regarding masks were repealed, the matter of Kgomotso Tshatshu v Baroque Medical (Pty) Ltd was heard, a month after the company was taken to the CCMA by Ms Bessick. In deciding this award, the commissioner referred to all the above-mentioned CCMA matters. The dismissal in this arbitration was on the grounds of operational requirements and the basis was in relation to non-compliance with the vaccine policy. The issue in this matter was whether the employee’s dismissal was fair, and whether she was entitled to severance pay.
In this matter, Ms Tshatshu rejected the vaccine on the basis of her right to bodily integrity, as well as her negative reaction to the flu vaccine 10 years ago (to which her doctor provided a note). The company provided no alternatives to not receiving the vaccine. The company allegedly conducted a risk assessment and decided that the interests of the majority outweighed the interests of a few individuals.
CCMA found mandatory vaccine policies unreasonable
As per the company, any employee who refuses the vaccine, even for credible reasons, is to be dismissed. The CCMA found that mandatory vaccine policies have no place in our labour market and are unreasonable. The CCMA stated further, that on the basis of equality, freedom and security of the person, limitation of rights, the Government’s response to and the regulations it issued, it is unmistakably clear that the right to issue rules such as mandatory vaccines, as a rule of general application, lies with the Government and thus, employers do not have the right to formulate such policies. The dismissal was thus found to be substantively unfair and unconstitutional – procedural fairness was not dealt with. Ms Tshatshu was awarded 12 months’ compensation.
As of now, the Solidarity Judgment is the only binding decision in respect of vaccination policies and from the available facts, our Courts as well as the CCMA appears to be in favour of vaccination policies, save for the most recent CCMA decision in the matter of Kgomotso Tshatshu v Baroque Medical (Pty) Ltd.
The Hazardous Biological Agents Regulations and workplaces
In terms of section 43 of the Occupational Health and Safety Act, the Minister of Employment and Labour published the Hazardous Biological Agents Regulations (“HBA Regulations”) on 16 March 2022, which applies to all employers and self-employed persons within workplaces. As per these regulations, Covid-19 is listed as a “Group 3” hazardous biological agent (“HBA”).
In terms of this, reasonably practicable steps may be taken to control exposure of such HBAs within the workplace. These include but are not limited to: risk assessments and exposure monitoring in respect of HBAs, record keeping, medical surveillance, personal protective equipment (“PPE”) and facilities and prevention and control of exposure to such HBAs. The Occupational Health and Safety Act, read in accordance with the HBA Regulations, and the Code of Good Practice: Managing exposure to SARS-COV-2 in the Workplace (“the Covid Code”) seems to permit mandatory vaccines. However, with the regulations in respect of face masks no longer being mandatory, this may change.
National State of Disaster ended
With the National State of Disaster having come to an end, vaccination polices are likely not to have the same standing as before. What this means is that directions and regulations given in terms of the Disaster Management Act are repealed and therefore, no longer applicable due to it being made in line with the National State of Disaster. This is to the exception of certain measures that are meant to stay in place during this transition period, which is briefly discussed below.
Firstly, the Covid Code was put in place to manage Covid-19 related issues within the workplace. This Code compels employers to supply their employees with information regarding the vaccines, such as: the nature of it, the benefits, and any potential risks and contraindications.
Secondly, as of May 2022, new regulations in terms of the National Health Act relating to Covid-19 were published via the Government Gazette. In terms of these regulations, “vaccinated against Covid-19” refers to having received at least one dose of the Covid-19 vaccine. Face masks remained compulsory in all indoor public places (other than basic education institutions) and while at work for more than 2 years. This, in addition to the regulations regarding international travellers and social distancing has since been repealed.
The Covid Code, transitional regulations and reasoning of the Labour Court are all we can rely on, at the present time, to govern vaccination policies.
The inapplicability of the regulations and directives under the National State of Disaster Act previously used further reinforces the importance of the Covid Code and its role in governing Covid-19 policies within workplaces.
This Code is now the guide to employers in respect of maintaining a safe workspace for employees while still limiting the risks of Covid-19 infection and its spread, as well as balancing the rights of employees while doing so. We are now at the mercy of the Covid Code and the reasoning of the Court in the Solidarity Judgment decision, pending further regulations by the Government or further judgments from our Courts. With the National State of Disaster having ended so recently, we are now awaiting further word on vaccination policies.
As we can see, despite “refusing to vaccinate” not being a said ground of dismissal, employers are deeming such decisions as misconduct (as in Kok v Ndaka Security and Services), incapacity (as in Mulderij v The Goldrush Group), incompetence (September v Inyosi Empowerment) or operational requirements (Bessick v Baroque Medical (Pty) Ltd; Tshatshu v Baroque Medical (Pty) Ltd).
Seek legal advice about Covid policies
If employees, after approaching the CCMA, are unhappy with the outcome received, they are encouraged, with the advice of an attorney, to lodge an application at the Labour court. And likewise, employers, before enforcing health-related policies upon their employees – especially where such policies may include a mandatory vaccination component – are encouraged to seek legal advice to ensure the enforcement of such policies are done in a proper manner and in compliance with the latest legal literature of Covid vaccinations in the workplace.