21 March 2022
Many companies are struggling with the question of whether they can make it mandatory for their employees to be vaccinated against the Covid-19 virus and, if necessary, even take disciplinary steps against an employee who refuses to be vaccinated. So what does our law say about this?
The short answer, is “yes” an employee can be dismissed for refusing to get vaccinated. Whether or not that is the case in a given situation will however depend on a number of factors.
So let’s break it down. Firstly, in June 2021 the the Minister of Employment and Labour issued the Amended Consolidated Direction on Occupational Health and Safety Measures in certain workplaces. This direction introduced the possibility of mandatory vaccination in certain workplaces. Since then, many employers in the country have adopted policies which make vaccination mandatory for their employees, with employees who don’t comply potentially running the risk of losing their jobs. But, the question remains whether from a labour perspective this is allowed and whether someone can be dismissed.
The CCMA recently considered this position. The CCMA Commissioner found that dismissing an employee for refusing to be vaccinated was substantially fair by the employer, despite the objections of the employee that taking the vaccine in line with the company’s policy on mandatory vaccinations contravened her right to bodily integrity.
In arriving at this decision, the Commissioner noted in her ruling that the company had applied the correct procedure prior to adopting the mandatory vaccination policy and that various consultations were held with the unions and employees over a period of three months. Specialists had also been made available by the company to address any questions from the employees. The policy also made provision for the employees to apply for exemption, which had to be reviewed by the company. The employee had applied, but was refused exemption as the company viewed her as a high-risk employee who interacted a lot with colleagues daily while working in confined and uncontrollable spaces - and accordingly required her to be vaccinated. The Commissioner concluded that the employee’s refusal to vaccinate in fact rendered her “permanently incapacitated”, and as such her dismissal was fair.
This arbitration award is the first public case in which an employee was dismissed for refusing to get vaccinated. However, employers should be careful to see this judgment as a blanket justification for dismissals. The facts of each case and the procedures followed by the employer will all have bearing on whether a dismissal is fair or not. Should you be confronted with a situation of having to consider disciplinary action against an employee who refuses to be vaccinated contrary to your vaccination policy we would strongly advise that you consult with a labour specialist to advise you on the correct way to proceed.