For the second time in a fortnight, the Council for Conciliation Mediation & Arbitration has ruled that suspending an employee for refusing to be vaccinated is acceptable, this time citing the Occupational Health and Safety Act, writes MedicalBrief. The previous finding was in terms of the Labour Relations Act, but both rulings raise issues of constitutional rights – inter alia, to bodily integrity and to religious freedom – that likely will have to be ruled on by the Constitutional Court.
GroundUp reports that Commissioner Petrus Venter ruled that the OHS Act compelled employers to provide safe workplaces, and the requirement to vaccinate was in the interests of the health and safety of all employees.
Gideon Kok, a security officer at Ndaka Security Services, which provides security for Sasol Ltd in Sasolburg, was suspended after he refused to be vaccinated on religious grounds. He was given the option of providing a weekly COVID-19 test, but he only did this a few times. He then refused because he had to pay for the testing himself. He was suspended in November last year. Kok claimed this was an unfair labour practice and that the requirement that he be vaccinated contravened his rights to freedom and security.
Evidence during the hearing was that Ndaka, in terms of directives by the Minister of Employment & Labour, had undertaken COVID-19 risk assessments during which Kok had been identified as an employee who needed to be vaccinated because he shared an office on site at Sasol with 10 other employees and worked in close contact with others. Kok had previously contracted COVID, and contact tracing revealed that it was highly probable that several colleagues had been infected by him.
Kok, in his evidence, said his suspension was unfair because there was no legislation in place that compelled anyone to be vaccinated. He said he was a devout Christian and he had already recovered from COVID. The vaccination, he said, was “still in the experimental stage” and would not prevent the spread of the virus, nor was it a cure.
At the centre of the debate, said Venter, was the conflicting constitutional rights, coupled with moral and ethical opinions. He said Kok was relying on his constitutional rights and any infringement would have to be based on compelling reasons, according to the GroundUp report.
The commissioner said the vaccination had shown a demonstrable success in limiting severe illness and transmission, and Kok had not been able to present any evidence to the contrary. “The company and Sasol do not require vaccination to protect only him … the aim is to ensure a safe working environment for everyone. He relies on his religion; this is baseless and without any support, theological or scientific,” said Venter. He said the company had complied with the Minister’s directives, which did not make vaccination mandatory but placed the onus on the employer to take into account its general duties under the Occupational Health and Safety Act.
“The Act goes further, it determines that every employee at work must co-operate with an employer to obey health and safety rules,” he said. “I have little doubt that the requirement to vaccinate is nothing less than a ‘reasonable and practical step’ that every employer is required and compelled to take.”
This case follows a similar ruling by the CCMA last week, as reported (with full CCMA finding) in MedicalBrief (26 January). In that case, a former employee of gambling enterprise Goldrush will approach the Labour Court to challenge the CCMA’s finding that her dismissal, due to her refusal to receive a COVID-19 vaccine, was correct.
The CCMA upheld the dismissal of Theresa Mulderij from Roodepoort as substantially fair. Mulderiji, who was employed as a business-related and training officer in March 2018, based her argument on her constitutional right to bodily integrity, as laid out in section 12(2), which was being impeded.
She was found by commissioner Lungile Matshaka to be “permanently unable” to perform her duties due to her vaccination stance. In the judgment, Matshaka said: “In my own sense of fairness, I can only conclude that Mulderiji is permanently incapacitated on the basis of her decision not getting vaccinated and (by) implication refusing to participate in the creation of a safe working environment.”
The CCMA’s ruling referred to a memorandum from Gauteng High Court Deputy Judge President Roland Sutherland in which he expressed the opinion that people have an obligation towards colleagues to ensure a safe workplace and that vaccine mandates will therefore, in all probability, hold up to constitutional scrutiny.
Mulderij says she is seeking legal representation for the next stage in her battle. She maintains that she has a constitutional right to “bodily integrity” and that her dismissal was unfair. “Who knows, perhaps it ends up in the Constitutional Court,” Mulderij says, who is still unemployed.
However, a number of organisations and trade unions believe the CCMA missed the mark when it ruled against her. The Sunday Independent reports that SA Federation of Trade Unions spokesperson Trevor Shaku believes the judgment concentrated on the procedures the employer followed in notifying employees about vaccinations and the failure of the employee to comply.
“It would have been a fair judgment if this process were merely on another safety and health measure that does not infringe the worker’s bodily integrity. But because it overlooks the constitutional prescription, it’s not a fair judgment,” said Shaku. In a joint statement, Cosatu, Fedusa and Nactu said they were extremely disappointed with the ruling. Pandemic Data Analytics (Panda) chairperson Nick Hudson said the judgment implemented the wrong assumptions about what the vaccines do and was “very flawed”. “This can be challenged at the Labour Court on appeal, and I hope that it is. It is an irrational judgment,” said Hudson.
But attorney and labour law specialist Michael Bagraim said, “In the first comprehensive arbitration award on mandatory vaccinations at the workplace, the arbitrator emphasised the need for proper consultation and investigation before making the vaccine mandatory. The operational requirements of the business and the personal circumstances of the individual have to be taken into account. This award makes it reasonable to expect problems at large workplaces where they can’t individually consult with their staff.”
“The golden thread running through this ruling is that the bulk of the group trumps the rights of the individual. We can expect many other arbitration rulings and eventually will have this issue finally decided by our Constitutional Court.”
News24 reports that when asked if the CCMA had got it right, employment and labour law specialist Jessica Braumsaid: “In those circumstances, the CCMA was correct in finding that the employee was incapacitated from her role. In this case, the employee was dismissed for incapacity, which means that she lacked the ability to perform her role. The employer provided evidence to prove that her role required her to be vaccinated (for the health and safety of guests and other staff) and there appeared to be no other way to accommodate her in her role while ensuring the health and safety of other staff and guests.”
However, Braum pointed out that in this case the commissioner had not addressed “the elephant in the room”, which was “how does one weigh up employees’ Constitutional rights versus employers’ health and safety obligations? The saga must then continue”. Braum said employers were required to attempt to accommodate employees who opted out of vaccination. If such employees could not be accommodated, the employer may have no option but to dismiss for incapacity or operational requirements.
Employment lawyer Jaqcui Reed said in the News24 report that it was difficult to assess whether the CCMA commissioner made the correct decision in the absence of a review of the record of proceedings. She said the facts, as recorded by the commissioner in his award, indicated that the employer conducted an extensive consultation process with all relevant stakeholders over an extended period of time and considered the employee’s representations regarding her refusal to vaccinate. Reed added that the employer also considered reasonable accommodation of the employee.
In the opinion of Constitutional law expert Professor Pierre de Vos: “Employees owe a duty of care to safeguard their colleagues (and others with whom they are in contact) from COVID-19 harm. Another lesson is perhaps that doing ‘your own research’, and embracing widely circulating but misleading or outright false claims about the safety and efficacy of COVID-19 vaccines can cost you your job.”
Writing on his Constitutionally Speaking blog, De Vos said Mulderij applied for an exemption as provided for in the company’s policy, “ostensibly based on a claim to (the right to) bodily integrity” guaranteed in section 12(2) of the Bill of Rights. The company’s Exemption Committee declined her application for an exemption because it had “identified her as a high-risk individual” who interacted with colleagues daily “while on duty in confined, uncontrollable spaces”. She was therefore at risk and would potentially expose other colleagues to the risk of possible infection. The presiding officer at her subsequent disciplinary hearing concluded that she was “permanently incapacitated based on her decision to not getting vaccinated and by implication her refusal to participate in the creation of a safe working environment”.
De Vos notes the Labour Relations Act recognises incapacity as a legitimate ground for dismissal. In this case, incapacity arose because her refusal to get vaccinated made it impossible for her to do the job for which she was employed. The CCMA confirmed the fairness of her dismissal.
- The commissioner noted that the decision on the fairness of the dismissal must be taken “in the light of available medical evidence and opinion”. De Vos wrote Mulderij’s decision not to get vaccinated seemed to be based on widely circulating but “misleading, overstated, or outright false” claims about the safety and efficacy of COVID-19 vaccines.
- The company had “from its drafting up to its implementation, followed all the crucial steps” prescribed by the regulations that govern the adoption of vaccine mandates by employers – consulting widely “with various unions and all employees in the group for a period of about three months”. The policy also provided for exemption for those who objected to being vaccinated on constitutional grounds. De Vos said the outcome of the case may have been different had the employer failed to follow all these steps.
- The commissioner accepted that employees did not have an absolute right to freedom of choice, when this choice would potentially endanger others. The CCMA indicated that its decision was guided in part by a memo Judge Roland Sutherland, Deputy Judge President of the Gauteng Division of the High Court, had sent to his colleagues stating that “the incontrovertible legitimate interest of the community must trump the preferences of the individual”.
The CCMA concluded that Mulderij was “permanently incapacitated on the basis of her decision to not getting vaccinated and (by) implication refusing to participate in the creation of a safe working environment”. De Vos says the CCMA might have come to a different conclusion if Mulderij had not based her refusal to get vaccinated on misleading and false claims about the efficacy and safety of COVID-19 vaccines. He adds employees whose religious or other beliefs require them to refuse all medical treatment – including any kind of vaccination – might find a more sympathetic ear at the CCMA.
A number of teachers opposed to mandatory vaccination have come forward since the opening of schools. The Witness reports that this was confirmed by the teachers’ unions who said a number of schools, especially independent schools, which have introduced mandatory vaccination, have had staff voicing their opposition.
“Staff are raising various reasons why they are against this, which include personal, religious, and even medical reasons,” said National Professional Teachers’ Organisation of South Africa KZN CEO Thirona Moodley. She said the union has told its members that the constitutional right to bodily integrity has its limitation in terms of the constitution. Moodley said they have also reminded members that their right not to be vaccinated must not affect the children’s right to a safe environment.
Moodley said they have to wait until the court pronounces the constitutionality of the mandatory vaccine policy in the workplace. Meanwhile, the South African Democratic Teachers’ Union national spokesperson Nomusa Cembi said they were aware that some schools has instituted a mandatory vaccination policy for staff.
The non-profit HBR Foundation, which represents those who were fired for refusing to be vaccinated, said it was not true that the unvaccinated were putting those vaccinated at risk. “The purpose of vaccines is to protect the vaccinated and not the unvaccinated. The vaccinated do not live in a vacuum. They live among millions of South Africans who are yet to be vaccinated. They travel with them in taxis and buses and they meet at malls after working hours. And we understand that some of them might be getting some incentives for having a huge number of vaccinated people,” said foundation spokesperson Walter Masilo.
National Black Consumer Council secretary-general Dr Raynauld Russon said the matter was already before the Constitutional Court, where the Consumer Council wanted the court to urgently decide whether or not the implementation of mandatory vaccines was ultra vires and derogates non-derogable constitutional rights. “It is advisable for employers to be patient because they may find themselves facing class action and liability cases,” he is quoted as saying in Sunday Independent.
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