I fail to see how it’s fair

As the issue and implementation of mandatory vaccination policies (MVPs) become ever more apparent to many South Africans, the question constantly arises whether a dismissal based on an employee’s failure to vaccinate (in line with such an MVP) would be deemed to be fair or not.

Daniel van der Merwe, Eastern Cape provincial manager of the Consolidated Employers Organisation, explains that there has previously been very little to go on for guidance by way of case law or arbitration awards, due to the novelty of the subject matter. “This has, however, changed very recently. In what is seemingly the first arbitration award issued by the Commission for Conciliation, Mediation and Arbitration (CCMA) pertaining to an employee refusing to vaccinate in accordance with a company’s MVP, the CCMA has ruled that the dismissal of an employee who declined to be vaccinated in line with such policy was held to be substantively fair.”

I completely disagree. Don’t get me wrong, I’m by no means an anti-vaxxer, but I don’t believe that it’s fair to dismiss an employee if they don’t get vaccinated against Covid-19 (I’ll add my counterarguments after all of the “fair” points have been made).

The facts about the Covid vaccines are:

• You can still get Covid-19 and spread the coronavirus to others, even if you’ve been vaccinated.
• If you haven’t gotten sick from Covid-19 yet, isn’t it fair to assume that you have a natural level of immunity?
• You can’t hold anyone else – whether it be a person, organisation, or the government – responsible if you experience any adverse effects from the vaccine.
• The vaccine does, however, lower your chances of being hospitalised or dying if you do get Covid-19.

But I digress, let’s get back to the matter in question. It pertains to the case of Theresa Mulderij v Goldrush Group. “The employer, recognising the need to potentially implement an MVP, drew up a draft policy and had the same sent to their attorneys for review and for a final draft policy to be drawn up. Upon receipt of the final draft policy, the same had to be approved by the executive committee of the employer. Further to this, an MVP committee was created, which was tasked with identifying various risks and hazards in the workplace to which all employees were exposed and identifying how these risks and hazards were to be mitigated,” explains Van der Merwe.

“Before deciding to implement the MVP, the employer then consulted with various unions and employees regarding the policy and its content. After concluding the consultations, the employer then allowed those employees who did not wish to be vaccinated to apply for exemption from the policy; this application would be considered by the MVP committee.”

He adds that, in this case, the employee applied to be exempted from being vaccinated. “Her reasoning was based primarily upon three different grounds. Firstly, that of S12(2) of the Constitution, which entitles every individual to inter alia bodily integrity. Secondly, she felt under pressure having to choose between being vaccinated and her livelihood. More specifically, she had to waive any form of recourse against pharmaceutical companies in the event of any side effects caused by the vaccination. Thirdly, she had at all times during the pandemic been vigilant in observing the various rules pertaining to social distance, et cetera, and had as yet not contracted the virus.” These definitely seem like valid reasons to me.

“When looking at the arbitration award and delving into the reasoning of the Commissioner, it is important to keep in mind that this dismissal was based on incapacity and not operational requirements,” Van der Merwe notes. “There has been much talk lately about whether or not a dismissal for refusing to be vaccinated in terms of an MVP will be an incapacity related dismissal or whether it would be related to the operational requirements of a business, i.e., retrenchment.

“Be that as it may, in this instance, the Commissioner alluded to the fact that when dealing with a dismissal for incapacity and having the Code of Good Practice firmly in one’s mind, it is the duty of the employer to establish whether or not the incapacity is temporary or of a permanent nature. In the current case, the Commissioner decided that the refusal to be vaccinated constituted permanent incapacity and, thus, the employer was entitled to dismiss the employee on these grounds.”

Van der Merwe adds that the Commissioner’s ruling highlights that the employee does not want to participate in the creation of a safe working environment, by implication, with her refusal to be vaccinated in line with the MVP. He says that in coming to his decision in the current matter, the Commissioner also relied on a memo drafted by Judge Roland Sutherland, the deputy judge president of the Gauteng High Court, which reads as follows:

“There has been, as yet, only mild protest that this (adopting
a no-vaccination-no-entry policy) violates the freedom of choice … In my view this is the wrong question. The proper question is whether or not an individual is sufficiently civic-minded to appreciate that a duty of care is owed to colleagues and others with whom contact is made to safeguard them from harm. If one wishes to be an active member of a community then the incontrovertible legitimate interest of the community must trump the preferences of the individual.”

My counterarguments are alluded to in the following questions:

If you can still get Covid-19 and spread the coronavirus, even if you’ve been vaccinated, how does an unvaccinated person create an unsafe work environment or impair their duty of care towards those with whom they make contact?

How can an employee be dismissed for incapacity if they aren’t in ill health or injured? Not being vaccinated doesn’t make you sick or injured. (It’s another story if they do get Covid-19, but what if they’re asymptomatic and can still work?)

And what will happen to the employees that are vaccinated, get Covid-19, and have to stay home? Doesn’t this ruling open the possibility that these employees could also be dismissed for incapacity?

There clearly are some things that still have to be resolved, as Van der Merwe states so eloquently: “Seeing as the current matter is still novel in nature, it is highly probable that either this arbitration award or many more that are sure to come on this topic will find their way to either the Labour Court or the Constitutional Court. Such courts will undoubtedly develop the law relating to this subject matter in far greater detail and provide employers and employees alike with a better understanding of how MVPs may be implemented and how the balancing of respective rights will be interpreted.

“For now, however, the current arbitration award and the reasoning of the Commissioner give employers an indication of how the CCMA and the various bargaining councils may reason when deciding the fairness of dismissal pertaining to MVPs.”

I, however, fail to see how this is fair. What do you think?