The CCMA has ruled that the suspension of an employee who refused to be vaccinated was not an unfair labour practice in terms of the Labour Relations Act. The is the second arbitration award that has gone against an employee who refused vaccination.
The dispute involved Ndaka Security and Services and one of their security officers, Gideon Kok, who refused to be vaccinated on religious grounds.
However, the commissioner, Petrus Venter, said Kok had failed to demonstrate that it is a requirement of the Christian religion that a person is not to be vaccinated. He said Kok’s reliance on his religion was “baseless and without any support, either theological or scientific”.
Comment: Last week, constitutional law expert Professor Pierre de Vos pondered whether 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. He was commenting on the reasons for the CCMA’s ruling in the Theresa Mulderij vs The Goldrush Group case. The CCMA’s award in this case seems to indicate otherwise.
Access to Sasolburg plant blocked
Kok’s access card to the Sasolburg plant was blocked from 1 November last year.
Sasol, which was Ndaka’s main client, wanted all staff to be vaccinated. Ndaka has an office at the plant.
Kok was offered the alternative of producing a negative Covid-19 test every week. He did this “on some occasions”, but then stopped, as he had to pay for the tests.
Ndaka sent Kok home. He was paid his full salary in November and December, and according to Ndaka, he would be paid for January this year.
Ndaka said Kok had not been suspended for refusing to be vaccinated. He was merely instructed to stay at home or submit a weekly Covid-19 report. He was only suspended on 22 November for a disciplinary matter that did not relate to Covid.
But Venter found that Ndaka’s actions, in blocking Kok’s access card, did fall within the ambit of “suspension” and therefore the CCMA had jurisdiction in the dispute.
Mandatory vaccination ‘not law’
Kok sought an order compelling Ndaka to allow him to enter the workplace.
His arguments included:
- To compel an employee to be vaccinated would be contrary to the Constitution, the National Health Act and the Consolidated Directives issued by the Minister of Employment and Labour.
- Section 12 of the Constitution protects everyone’s right to freedom and security.
- He was a devout Christian who had recovered from Covid-19. He took medication when he was ill but recovered only once he stopped taking medication and started to rely on his body’s natural immunity and his faith.
- Ndaka could have resorted to alternative measures. There were other employees who also refused to be vaccinated and some were still at work.
- The vaccine had not been approved and was still in an experimental phase.
- The vaccine would not prevent the spread of Covid-19 or cure anyone.
During cross-examination, Kok admitted that the Consolidated Directives from the Minister of Employment and Labour could be regarded as a form of legislation and he agreed that strong measures could be taken, but this did not include being denied access to the workplace.
He also conceded that Covid-19 fell within the definition of a biological agent in safety legislation.
Why Kok was required to be vaccinated
In its evidence before the CCMA, Ndaka said:
- Its risk assessments identified Kok as an employee who was required to be vaccinated. He shared an office with about 10 other employees and worked in close contact with others. He contracted Covid-19 some months earlier, and contact tracing revealed that there was a huge possibility that several colleagues contracted the disease from him. The entire office had to close, as the employees had to self-isolate.
- In terms of its prevention plan, two employees were asked to remain at home with the “no work no pay” principle, whereas another employee chose to submit a negative Covid-19 test certificate every week. One employee worked in an isolated office.
- It was not possible to allow Kok to work from home or in an isolated office, because he had to be physically involved with guards, the client and the public.
- It was under huge pressure from Sasol to achieve a 100% vaccination rate. It would have been disastrous for the company to ignore the requirement, and the closure of offices hampered security services.
Limitation of rights is justifiable
Venter said he was not convinced that Kok was a victim of any unfairness in as far as his claim to his constitutional rights was concerned.
He said an infringement of the applicant’s rights had to be based on compelling reasons. The vaccination has shown a demonstrable success in limiting severe illness and transmission, and Kok was unable to present any evidence to the contrary.
There was a very limited chance of adverse effects as a result of the vaccination.
There is furthermore a clear and demonstrable relation between the limitation and its purpose. Less restrictive measures, such as face masks, were already in place, and it appears that vaccination is almost a last resort in curbing the pandemic.
Ndaka and/or Sasol did not require vaccination to protect only Kok or to cure any other worker. The aim of vaccination is to ensure a safe working environment for everyone and to protect lives and livelihoods.
Before limiting his rights, Ndaka considered alternatives. However, it was not possible for Kok to work in an isolated office or from home, and he chose not to present negative weekly test results.
Vaccination is a ‘reasonable practical step’
Venter said section 8(1) of the Occupational Health and Safety Act imposes a statutory duty on all employers to take reasonably practicable measures to ensure a healthy and safe workplace.
In terms of section 8(2), that duty includes “taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment”.
Section 9(1) extends the employer’s obligations to third parties who are directly affected by its activities.
Furthermore, section 14(b) and (c) state that every employee must co-operate with an employer who has imposed measures and to obey health and safety rules and procedures laid down by the employer … in the interest of health and safety.
Venter said he had “very little doubt that the requirement to vaccinate was nothing less than a ‘reasonable practical step’ that every employer is required and compelled to take”. Therefore, he could not blame Ndaka’s actions.
Venter also said there was “a clear commercial rationale” for Ndaka’s decision.
“The previous closing of the office was almost disastrous, and their largest client requires vaccination.”
Furthermore, Ndaka was engaged in front-line services, and Kok played an important role in managing security on the company’s premises.