comparative piece: the effect of workplace vaccination policies on employment

Since the arrival of Covid-19 employers have shifted towards implementing mandatory vaccination policies in their respective workplaces. This is primarily due to their operational requirements and obligations in terms of the Occupational Health and Safety Act 85 of 1993. Workplace vaccination policies, whether mandatory or otherwise, have been the focus in various disputes before the Commission for Conciliation, Mediation and Arbitration (hereinafter “CCMA”). The outcome of these cases and their effect on employment will be discussed in greater detail below.

The questions before the CCMA in Bessick v Baroque Medical (Pty) Ltd 2022, was whether the Applicant was unfairly retrenched and does the offer to retain employment on condition that the employee get vaccinated constitute an alternative offer of employment for purposes of Section 41 (4) of the Basic Conditions of Employment Act 75 of 1997 (hereinafter “BCEA”). In the above mentioned case, the Applicant referred an unfair retrenchment dispute to the CCMA on the premise that her employer failed to adequately consider alternatives to retrenchment, in turn entitling her to severance pay. The Respondent, a medical supply company, classified as an essential service, implemented a mandatory Covid-19 vaccination policy for its staff after thorough deliberation between the company’s Board of Executive Management and their Covid-19 Committee. Their basis for considering a mandatory vaccination policy was three-fold- (i) to ensure that staff members were not infected by the virus; (ii) to sustain operations by attempting to prevent transmission of the virus from unvaccinated staff; and (iii) to prevent absenteeism as result of the virus. A Covid-19 risk assessment was performed to identify and mitigate the risk of possible infection, transmission or cross-contamination of the virus amongst employees in the workplace. This risk assessment resulted in a mandatory vaccination policy being adopted, as it was found that employees had a higher risk of exposure to the virus, due to the nature of their work. According to the Respondent’s risk assessment document, the employer’s primary aim was to protect those who were at higher risk of illness or death resulting from Covid-19 and to enhance the well-being of all employees. 

The Applicant listed several reasons for her refusal to vaccinate, including medical, personal and religious grounds. Her objection on medical grounds was based on the fact that she had a blood disorder and was concerned that the vaccine might trigger something and that her General Practitioner advised her that the vaccine “might not be a good idea” at that stage. No medical evidence was however submitted to confirm her condition. With regards to her objection on personal grounds, the Applicant was of the view that the vaccine had not been tested for a sufficient amount of time compared to other vaccines and she did not know the ingredients in the vaccine. Furthermore, the reason for the Applicant’s religious objection was that she was a Christian and did not believe in vaccination and did not feel the need to inoculate herself. The Applicant also stated that she believed a new world order was starting to take effect and she did not wish to partake therein. The Applicant was ultimately retrenched for her refusal to vaccinate in accordance with her employer’s mandatory vaccination policy and her employer did not pay her severance pay as it was of the view that it had offered the Applicant a reasonable alternative to retrenchment namely vaccination.

What does the law say?

In accordance with section 41 (2) of the BCEA, an employer who dismisses an employee for reasons relating to the employer’s operational requirements must pay an employee severance pay equal to at least one week’s remuneration for each completed year of continuous service. However, section 41 (4) of the BCEA makes it clear that the right to severance pay is not an automatic right as an employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay. 

This begs the question, what constitutes an offer of alternative employment? The Respondent in this case considered the following alternatives- (i) allowing employees to object to the mandatory vaccination policy; (ii) repeated Covid-19 testing and (iii) allowing employees to work from home. None of these alternatives were however deemed practical and the risk associated therewith was deemed too high. Notwithstanding this, the Respondent noted that whatever alternative position could be considered for the Applicant, the requirement remained that all employees be vaccinated. The Commissioner ultimately found that the Respondent’s decision to introduce mandatory vaccination policies was justified and that the Applicant’s refusal to vaccinate was unreasonable and without any merit. In his award the Commissioner also referred to the case of Freshmark (Pty) Ltd v CCMA & others [2003] 6 BLLR 521 (LAC), where the Labour Appeal Court held that an offer to an employee for his or her position on different terms constitutes an offer of alternative employment. The employment is therefore required to be an alternative, not the very same position. For this reason, the Commissioner found that the different condition in this case was the vaccination requirement which became an operational requirement of the Respondent. Further, the Applicant had the option to vaccinate and avoid retrenchment. She was aware of the requirement to vaccinate but chose not to comply with it. The consequences which arose from her decision was that she would not be able to enjoy continued employment as she was unable to perform her duties without being vaccinated, which was an operational requirement of her employment. The Applicant’s retrenchment was thus found to be substantively fair and she was unsuccessful with her claim for severance pay. 

Other CCMA cases

In recent months, an assortment of cases have made the rounds pertaining to workplace vaccination policies. One of these cases was Mulderij v Goldrush Group 2022. This matter involved dismissal for reasons related to incapacity. The Respondent in this matter established a Mandatory Vaccination Policy Committee and an Appeals Committee. The former was tasked with compiling a profile of risks and hazards that employees were exposed to and how to mitigate these accordingly. A mandatory vaccination policy was eventually implemented. Following the Applicant’s refusal to comply with said policy, the Respondent conducted a hearing. The outcome of the hearing was that the Applicant’s refusal to vaccinate rendered her permanently incapacitated as she had expressed that she had no intention of getting vaccinated. The Applicant was subsequently dismissed and referred an unfair dismissal dispute to the CCMA seeking to either be reinstated or compensated. The Applicant, in her arguments, relied on her right to bodily integrity contained in section 12 (2) of the Constitution of the Republic of South Africa, 1996 (hereinafter “Constitution”) as the premise for her exemption. In addition, she claimed that she had concerns about the effects of the vaccine and felt pressured to choose between her livelihood and accepting the vaccine thus waiving her right to recourse. She further stated that to her knowledge, she had not yet been infected or caused anyone to be infected with the Covid-19 virus. In addition, she did not believe that the vaccine was beneficial for the greater good or wellbeing of others but only good for the individual themselves as it did not prevent the spread or contraction of the virus but only minimized the severity of symptoms and side effects. In light of all the evidence the Commissioner found the dismissal substantively fair and concluded that the Applicant was permanently incapacitated on the basis of her decision not to get vaccinated and by implication refusing to participate in the creation of a safe working environment. 

In the CCMA case of Kok v Ndaka Security and Services 2022, an unfair labour practice was referred by the Applicant, a safety practitioner. The Applicant claimed that he was subjected to an unfair labour practice in the form of his suspension. The Respondent provided security services to Sasol Ltd, who had a vaccination policy on their premises which required all persons to be vaccinated. The Respondent used and ran operations from an office on the property belonging to Sasol. In terms of the Respondent’s risk assessment, the Applicant was identified as an employee who was required to be vaccinated as he worked in close contact with other employees and had to be physically involved with clients and the public. Due to the Applicant’s refusal to get vaccinated, he was instructed to remain at home and denied access to the workplace with his access card being blocked. The Respondent proposed an alternative whereby the Applicant could submit a weekly negative Covid-19 test. The Applicant opted for the latter on three separate occasions, but due to the costs associated with same he was no longer prepared to do so. The Commissioner found that the Respondent did consider alternatives short of dismissal such as (i) for the Applicant to work from home; (ii) work in an isolated office or (iii) submit weekly negative Covid-19 tests. The Commissioner in making his award, considered the relevant provisions of the Constitution, the National Health Act 61 of 2003, the Consolidated Directive on Occupational Health and Safety Measures in the Workplace dated 11 June 2021, the Disaster Management Act 57 of 2002, the Occupational Health and Safety Act 85 of 1993 and applicable case law. The Commissioner subsequently found that the requirement to vaccinate was a reasonably practical step and that there was a clear commercial rationale for the Respondent’s decision. The Applicant’s suspension was thus not an unfair labour practice in terms of s 186 (2) (b) of the Labour Relations Act 66 of 1995.

Important take-aways from these cases

1. Workplace vaccination policies may have the effect of ending the employment relationship between an employer and employee for various reasons, as is evident from the cases discussed. Conducting a thorough Covid-19 risk assessment was a predominant factor in the success of the employer in each of the aforementioned cases. Without conducting a proper risk assessment to establish whether or not a vaccination policy is required and to identify employees who may be required to be vaccinated, the outcomes may have been different. Although the procedural fairness of the retrenchment was not in question in Bessick v Baroque Medical (Pty) Ltd, the Commissioner saw it fit to make mention of the requirements set out in Hospersa obo Meintjies v Huis Ravenzicht 2022 when implementing a mandatory vaccination policy. Risk assessments form a crucial part in justifying workplace vaccination policies, if and when same are challenged. This does not only speak to the manner in which the policy was developed and implemented but also the underlying reason for requiring such policy. Employers must ensure that the reasoning behind these policies is sound and fair and that they are implemented correctly. 

2. The chosen course of action and outcome will depend on the circumstances of each matter. Based on the arbitration awards in the cases above, it would seem that:

i. An employer may retrench an employee for failing/refusing to vaccinate and that this may be without severance pay if the employee unreasonably refuses the alternative;

ii. An employer may dismiss an employee for incapacity for failing/refusing to vaccinate; and

iii. An employer may lawfully suspend an employee for failing/refusing to vaccinate.

3. The Directive on Occupational Health and Safety Measures in the Workplace dated 11 June 2021 has now been codified into the Code of Good Practice on Managing Exposure to SARS-CoV-2 in the Workplace. The Code was published on 15 March 2022 and provides guidelines that are of use to both employers and employees. Employers can use it as a frame of reference to fairly develop and implement vaccination policies and employees can use it to assess whether their employers are following fair process. Both should however be aware that the Code is merely a guideline and not statute. Workplace environments may require certain reasonable deviations from the Code. 

Justine Del Monte (Director) & Andrea Miguel (Candidate Attorney)