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covid-19-vaccination

CCMA boldly declares vaccine mandates unconstitutional, but employers shouldn’t panic

In another recent mandatory vaccination award involving Baroque Medical (Pty) Ltd, the Commission for Conciliation, Mediation and Arbitration (CCMA) has found against the employer in an unfair dismissal dispute relating to an employee’s refusal to vaccinate. Not only that, but the CCMA has awarded the maximum compensation to the employee.

This is in stark contrast with the CCMA’s initial ruling relating to the same employer and the same mandatory vaccination policy.

In the first CCMA dispute involving Baroque Medical, the CCMA found that the employer was justified in implementing mandatory vaccination in the workplace as a mechanism to curb Covid-19-related absenteeism and that a failure to vaccinate led to a substantively fair dismissal for operational requirements. An exposition of the CCMA’s award in that case can be found here.

Before delving into the discrepancies in the CCMA’s about-turn, we deal briefly with the facts of this latest matter.

Background

Kgomotso Tshatshu was employed as a senior inventory controller by Baroque Medical, which supplies medical devices. It implemented a mandatory vaccination policy in respect of all its employees. The basis upon which it implemented the policy was to ensure that staff members were not infected by Covid-19 and to ensure business continuity through a reduction of Covid-19-related absenteeism. This was also linked to the creation of a healthy and safe work environment.

The employer did not consider that there were any suitable alternatives to vaccination, and any employee who refused to be vaccinated would be considered to be in breach of the policy and may be terminated for operational requirements.

The employee in question refused to be vaccinated on account of an adverse reaction to a flu injection 10 years prior and her view that the vaccines were experimental.

Following the provision of various medical certificates, Baroque Medical did not accept the reasons for the employee’s refusal and determined that the reasonableness of the employee’s refusal would inform whether she was entitled to a severance benefit. The employee was ultimately terminated for operational reasons and was not paid severance pay.

At the CCMA, the employee challenged the basis upon which Baroque Medical implemented the mandatory vaccination policy, claiming that this was an “unreasonable rule”. Specifically, the applicant claimed that, at one stage, meetings were mostly done remotely, she was given a laptop and worked alone in a boardroom, and social distancing and other protocols were in place. She did not see the need for the vaccine mandate.

CCMA’s ruling and reasoning

In his award, the Commissioner dealt with two aspects:

  • Whether the vaccine mandate is a reasonable rule; and
  • Whether the employee’s dismissal was fair.

In respect of the first aspect, the Commissioner went to great lengths to engage in a constitutional evaluation of vaccine mandates generally.

The Commissioner concluded that mandatory vaccination policies (in all circumstances) are not only unreasonable, but they also have no place in the South African labour market. This flies in the face of the Consolidated Direction of Occupational Health and Safety, which was in place at the time, and the new Code of Practice on Managing Covid-19 in the Workplace, which is currently in place.

Following this bold statement, the Commissioner recognised, in passing, that the Consolidated Direction does permit mandatory vaccination policies in certain circumstances but only to conclude that it does not permit a blanket mandatory vaccination policy.

In dealing with the reasonableness of Baroque Medical’s mandatory vaccination policy, the Commissioner commented that he is not aware of any country that has introduced mandatory vaccination for its citizens, and the employer had not produced any evidence regarding the effectiveness of mandatory vaccination in respect of any other organisations that have implemented it.

The Commissioner went on to explain his understanding of how many employers have implemented mandatory vaccination in South Africa, which, in his own version, was a guess.

He questioned the value of mandatory vaccination policies in the workplace based on his view that they relate only to few members of the public. In substantiating this view, the Commissioner indicated that the employees of Baroque Medical have lives outside of work that would expose them to the risk of contracting the virus and – seemingly relying on the news, social media and engagements with others – stated that the vaccine does not prevent contraction or transmission of the virus.

This reasoning is suspect. The fact that employees run the risk of contracting the virus in their activities outside the working environment could justify the employer’s approach. The greater the risk that employees may contract the virus outside the working environment, the greater the need may be for an employer to introduce a vaccine mandate to mitigate this risk to its operations.

In his reasoning, which does appear to be largely based on conjecture and his personal views, the Commissioner fails to consider the employer’s obligation to provide a healthy and safe work environment, as far as reasonably practicable, and the effectiveness of the vaccine against the severe effects of the virus (regardless of where it has been contracted). These two elements go to the heart of Baroque Medical’s reasoning to impose a mandatory vaccination in the workplace.

With respect, the Commissioner’s assessment ought to have been limited to whether, in accordance with the Consolidated Direction, Baroque Medical was justified in imposing mandatory vaccination in the workplace. However, he does not quite get there.

The one observation the Commissioner does make, which, if it is true, goes to the evaluation that he ought to have undertaken, is that the employer did not lead evidence on its risk assessment, an assessment required by the Consolidated Direction and underpinned by the Occupational Health and Safety Act and the relevant hazardous biological agent regulations.

The conducting of a risk assessment is imperative in the implementation of any health and safety measures (and the justification thereof), not just measures relating to Covid-19.

The Commissioner also criticised Baroque Medical for not leading evidence as to why it could not afford to endure Covid-19-related absenteeism, stating that all employers experience sick leave – some occasioned by Covid-19. This evidence would speak directly to whether, operationally and from a health and safety perspective, Baroque Medical had a valid operational requirement to impose mandatory vaccination.

Unfortunately, and because of the nature of the enquiry the Commissioner undertook, it appears that even if Baroque had led this evidence, the Commissioner would not have come to a different conclusion on the reasonableness (or justifiability) of Baroque Medical’s policy.

Ultimately, the Commissioner found that an employer has no right to impose mandatory vaccination and, in fact, goes so far as to state that it is unconstitutional. On this basis, the Commissioner found that Baroque Medical’s vaccine mandate was unreasonable and, concomitantly, the employee’s dismissal was substantively unfair. The Commissioner awarded the employee the maximum compensation.

Employers must be able to justify mandatory vaccination

A key takeaway from this award is that employers, regardless of the reason for the imposition of a mandatory vaccination policy in the workplace, must ensure that, in any dispute relating to the reasonableness of the policy, they are able to (and they then do) lead evidence regarding the justification of mandatory vaccination in the workplace.

In this instance, Baroque Medical should have led evidence regarding their intolerance for absenteeism, which could have included evidence relating to the impact of past Covid-19-related absenteeism and/or the specialised nature of their work and their inability to staff posts in instances of absence.

Although this award will attract attention, it is not a foregone conclusion that it will be followed by other commissioners, particularly in the light of the fact there are a number of awards confirming an employer’s ability to impose mandatory vaccination in the workplace.

Employers who have implemented mandatory vaccination policies in their workplaces need not panic about this latest award. Importantly, however, they should ensure that their risk assessment, which underpins their justification for imposing mandatory vaccination, is up to date and continues to justify their approach.

Lauren Salt is a director in ENSafrica’s employment practice.

This article was first published by ENSafrica is republished with permission.

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