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labour court

Labour Court strikes urgent ‘no jab, no access’ application from the roll

The Labour Court in Johannesburg has struck from the roll an urgent application brought by trade union Solidarity on behalf of two members who were denied access to their place of work because they refused to be vaccinated.

Acting Judge Tameshnie Deane ordered the case struck from the roll for lack of urgency and made a costs order against Solidarity.

Seesa, a human resources and labour law consultancy, adopted a “Covid-19 admissions to premises policy” that prohibits any unvaccinated employee from entering the workplace.

The two employees were denied access to the workplace when they reported for duty at the beginning of January.

Solidarity sought an order declaring the mandatory vaccination policy unlawful.

The relief it sought included:

  • Restoring the two employees’ contractual rights, including their right to render their services and to be remunerated; and
  • Compelling Seesa to comply with “a lawful procedure” in formulating and adopting Covid-19 management policies.

By the date of the hearing, on 27 January, Seesa had undertaken to pay the employees’ salaries. As a result, the court was informed that one of the employees had withdrawn from the dispute. The remaining applicants were Solidarity and Wynand Coertzen, a software engineer.

Judge Deane’s judgment focused solely on the issue of urgency.

She said an applicant who approaches the court on an urgent basis “essentially seeks an indulgence and to be afforded preference in order to prevent the prejudice and harm that may materialise or persist, if the conduct complained of continues. Central to a determination of whether a matter is urgent is the issue of self-created urgency.”

The judge said Solidarity’s case for urgency was “severely lacking”, primarily because “the application was not brought at the earliest available opportunity”.

The reasons in support of this included:

  • Seesa notified employees of the mandatory vaccination policy on 19 November 2021.
  • During a counselling session on 8 December 2021, Coertzen indicated that he understood the consequences of not being vaccinated when he returned to work in January this year. This was confirmed in communications sent in December.

Public interest

In oral submissions before the court, Solidarity argued that the matter concerned issues of public interest and therefore the court could exercise its discretion in favour of urgency. It was also argued “that the press is filled with articles on the issue of vaccines and that the relevance of this is both employers and employees are at sea as to what is and is not acceptable”.

But Judge Deane said it was trite that in motion proceedings an application must stand or fall by the allegations made in the founding affidavit.

“Looking at the reasons provided for in the founding affidavit for the purpose of this application, I am in agreement with the respondent. The issue of a public interests [sic] matter was not argued nor pleaded in the founding affidavit and therefore cannot be entertained herein.”

Solidarity argued that Seesa’s risk assessment policy and mandatory vaccination policy did not comply with the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces of 28 May 2021. Therefore, any retrenchments that resulted from implementing the policy would be unlawful.

But Judge Deane said it would be premature for the court to decide upon the lawfulness or otherwise of a dismissal yet to be effected.

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