The Congress of SA Trade Unions (Cosatu) has issued a warning to employers that “no employee should be dismissed” for refusing to take a vaccine, writes MedicalBrief.
However, if an employer has concluded risk assessments on the pandemic and vaccination with employees, the department cannot intervene to stop an employer from disciplining or dismissing employees for refusing to be vaccinated, according to Labour and Employment director-general Thobile Lamati who was speaking at a briefing following meetings the department had with the National Economic Development and Labour Council.
“We warn all opportunistic employers to stop victimising workers who refuse to vaccinate. All South Africans have a right to accept or refuse to be vaccinated either on medical or constitutional grounds,” it says in a statement, reported by EWN .
Cosatu said that there were other avenues available to employers instead of going the extreme route of sacking unvaccinated staff. Spokesperson Sizwe Pamla said that to accommodate legitimate reasons for refusal, employers should try to minimise contact with other workers. “You can accommodate and work outside ordinary hours, so you can allow that individual to continue to work with an N95 mask now. Otherwise, why are we reopening and saying workers can go back to work?" he said.
Cosatu does, however, encourage all members, workers, their families and South Africans in general to vaccinate “so that we can overcome the deadly COVID-19 pandemic”.
It also notes that there are “various conspiracy theories and myths circulating about the vaccine, which is why some people are sceptical to take them”.
“More than six million South Africans have been successfully vaccinated and this should reassure many sceptics to embrace science and not listen to idle gossip and unsubstantiated claims”. Nevertheless, it warned, “Cosatu supports the president's call that we should persuade all South Africans to vaccinate but that no one should be forced to vaccinate without their consent”.
According to a Sunday Independent report, concerns were raised after the Department of Basic Education (DBE) recently threatened to invoke operational requirements and incapacity clauses of the Labour Relations Act against teachers who chose not to be vaccinated. Those who refused said that they were afraid of the reported after-effects of vaccines and said there was evidence of people who died after being vaccinated.
But DBE spokesperson Elijah Mhlanga defended the circular, saying the purpose was to provide guidance regarding operational requirements for educators employed in terms of the Employment of Educators Act of 1998 following the implementation of the Basic Education Sector Covid-19 vaccination programme. He said at no stage did the DBE seek to compel employees to be vaccinated.
“The department has strongly recommended that education sector personnel get vaccinated but at no stage did the DBE seek to compel employees to be vaccinated.
“Where educators are not in a position to satisfactorily perform their duties required of them or because of medical condition, such matters will be handled in terms of the LRA read in conjunction with the Employment of Educators Act viz. operational requirements and incapacity procedures,” he added.
Dr Raynauld Russon, director of the Institute of Commerce and Management at Wits University, said: “There is a lot of controversy going around about the contra-indications and long-term effects of the vaccine. The vaccine, especially the RNA vaccine of Pfizer and Moderna, has never been used before and is being tried for the first time. Furthermore, it was not adequately tested on animals before being used on human beings as required by the Nuremberg Code of 1947. Several people have lost their lives after taking the vaccine and many have suffered adverse reactions like muscular dystrophy. One political party (Shosholoza Progressive Party) has opened a case of attempted murder against the Minister of Health for utilising this vaccine without proper trials.”
Professor Tivani Mashamba-Thompson, a senior lecturer in Public Health, said people who refused to take vaccines were covered by human rights laws. “According to section 12 (2) of the Constitution, every person has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction, security and control consent. According to this section of the Constitution, every person has the right to make decisions on health and medical interventions and treatment including the acceptance or rejection of the vaccine.”
The Sunday Independent notes that Dr Mvuyisi Mzukwa, vice-chairperson of the SA Medical Association (SAMA), also said that vaccination was not compulsory and warned that neither did it protect against infection and transmission.
“It is the responsibility of the employer to prevent work-related hazards and keep a healthy workforce. However, the president is on record informing the citizens including workers that the vaccine will not be compulsory. The Bill of Rights in our Constitution protects workers by declaring that they have a freedom of choice, and right to bodily integrity and privacy.”
The SA Human Rights Commission said it had received more than 30 complaints last week from workers and employers seeking guidance on dealing with employees who are against vaccination. The complaints included domestic workers, gardeners and teachers who claimed they were forced by their employers to take the vaccine under the threat of losing their jobs if they didn’t. A HRC spokesperson said the commission found itself in uncharted waters between the right to individual autonomy and the rights of the collective.
In the UK, the Equality and Human Rights Commission (EHRC) has warned employers against “no jab, no job” policies. The EHRC said in an HR Magazine report that while it understood businesses will want to protect their staff and customers from Covid-19 by requiring employees to be vaccinated, it advised them to take other factors into consideration.
Matt Jenkin, partner and head of employment law at Moorcrofts, said employers thinking about implementing a ‘no jab no job policy’ need to give careful consideration as to whether that is an appropriate step for their organisation to take. “A key part of this consideration will be to carry out a detailed risk assessment which shows that compulsory vaccination is the best way of dealing with the risk of Covid-19 in the workplace.”
Employers who didn’t give this careful thought, faced the real of risk of unfair dismissal claims. Kate Hindmarch, partner in employment law at Langleys Solicitors, said vaccinations create a conflict of legal protections, as freedom of individual choice is weighed against the health and safety of others.
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