Mandatory Covid 19-vaccination – a balance between a constitutional safeguard and a statutory obligation

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Mandatory Covid 19-vaccination – a balance between a constitutional safeguard and a statutory obligation

Recently, two separate cases were adjudicated at the CCMA on the very topical subject of mandatory Covid 19-vaccination.

Admittedly, these pronouncements do not constitute case law in consequence of the stare decisis legal principle, requiring precedent to be followed by lower adjudication entities, but since these pronouncements are topical, a first of its kind on this particular subject and certainly thought-provoking, it is worth paying attention to it.

What was pronounced in these two cases (both finding in favour of the employer) will certainly not be the last word on the subject of mandatory vaccination in the workplace, however the CCMA had the first “stab” at it.

By way of an introduction to the discussion of these two cases, the one significant commonality is that both employers adopted mandatory vaccination policies in consequence of and in adherence to the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces, published under the Disaster Management Act of 2002.

Consolidated Directions (Directions)

In short, for the employer to get to the point of fairly and systematically adopt a mandatory Covid 19-vaccination policy, the following primary prerequisites apply:

  • The undertaking of a risk assessment.

Having regard to the employer’s operational requirements, this assessment will determine if and to what extent mandatory vaccination would be appropriate in the workplace.

  • Develop or amend a plan

Essentially, this plan outlines the protective measures the employer will put in place to combat the spread of the virus.

  • Consult on the risk assessment plan

This consultation should involve important stakeholders such as trade unions and any health and safety committee operating within the workplace.

Once this groundwork has been done, the roll-out of the plan should be embarked upon, which includes:

  • Communicating the roll-out of the plan with employees, including indicating which employees/roles have been identified for mandatory vaccination.
  • Educating employees regarding vaccination, inter alia dispelling unscientific and speculative beliefs regarding vaccination.
  • Allowing identified employees to register for vaccination and notifying these employees of their right to object to being vaccinated and to formally seek exemption from mandatory vaccination.
  • Constructively engaging employees who refuse to be vaccinated.
  • Consider reasonable accommodation of those who object to be vaccinated, which could include making reasonable adjustments to working conditions where feasible.

Both employers in question adhered to these prerequisites for adopting mandatory vaccination.

Against this background, let us explore how employee and employer dealt with the striking of a balance between the constitutional safeguard on the employee’s side and the statutory obligation to provide and ensure a safe working environment for its employees on the employer’s side.

Theresa Mulderij v Goldrush Group – CCMA arbitration pronouncement: 21 January 2022

Mulderij held the position of Business-Related and Training Officer at Goldrush. Her position was identified as one which has been made subject to mandatory vaccination in consequence of Goldrush’s mandatory vaccination plan.

She refused to adhere to this requirement, claiming that all that vaccination does, at best, is to minimise the severity of symptoms and side effects of the virus, but it does not stop the spread or contraction of the virus. She also emphasised that no legislation compelled vaccination. Moreover, she stated that she followed Covid 19 protocol very strictly.

Her initial formal motivation or justification for her refusal was based on medical grounds, but later she abandoned this motivation and switched to constitutional grounds, referring to the right to bodily integrity (Section 12(2) of the Constitution), as well as the right to freedom of conscience, religion, thought, belief, and opinion (Section 15 of the Constitution).

In some circles it is believed that her switching between grounds of motivation constituted some form of “motivation shopping”, which could have tainted the  sincerity of her objection.

She was however afforded the opportunity to apply for exemption from mandatory vaccination, but after due consideration, given the amount of face-to-face contact her position requires and the unavailability of suitable alternative placement, exemption was not granted.

Ms Mulderij however persisted in her refusal to be vaccinated and was subsequently dismissed, presumably at an incapacity hearing, where it was found that she was “permanently incapacitated” for not being vaccinated and, by implication, refusing to participate in creating a safe working environment.

Not having had access to the internal hearing record during my research of this case, I could not ascertain the actual forum or process during which Mulderij’s services were terminated. Some commentators referred to a “disciplinary hearing”, while others mentioned a dismissal based on incapacity. On balance of probability, it is my view that it was the latter.

Ms Mulderij referred a dispute based on alleged unfair dismissal to the CCMA, claiming reinstatement or to be suitably compensated. Ultimately, the Commissioner hearing the case found that Ms Mulderij’s dismissal was fair, taken all relevant factors and circumstances into account.

Gideon J Kok v Ndaka Security and Services (Ndaka) – CCMA arbitration pronouncement: 25 January 2022

This is a particularly well-reasoned pronouncement on the issue of the employee’s refusal to submit to mandatory Covid 19-vaccination.

A slightly different angle was adopted by Mr Kok than was done in the case of Ms Mulderij. The refusal to be vaccinated in Mr Kok’s case has not resulted in a dismissal. An alleged unfair labour practice based on alleged unfair suspension was referred to the CCMA for adjudication purposes, based on the fact that Mr Kok was refused access to the workplace if not vaccinated or should he fail to  present a weekly negative Covid 19 – test result at own cost.

The common denominator between the two cases remains the refusal to be vaccinated in consequence of a Directions-compliant mandatory Covid 19-vaccination policy adopted by the employer.

Ndaka provides security services to a corporate client, Sasol Limited, who requires 100% Covid 19-vaccination in respect of access to its premises. Mr Kok is permanently employed by Ndaka as Safety Practitioner. This position was identified during the risk assessment exercise as one which would require mandatory vaccination. Mr Kok shared an office with a number of other employees.

Ndaka implemented several alternative Covid 19-measures for employees where feasible in order to maintain proper Covid 19-protocol, which ranged from employees working from home, working on the premises in isolation to submitting weekly negative Covid 19-test results at own cost.

Apart from the latter measure (which Mr Kok only complied with initially) it was not possible for Ndaka to allow Mr Kok to work from home or to work in isolation on the premises.

In consequence of Mr Kok’s persistent refusal to be vaccinated (which he based on mandatory vaccination not being legislated, forced vaccination being in contravention of Section 12 of the Constitution and relying on his body’s natural immunity and his faith to combat Covid 19), Ndaka required Mr Kok to stay at home for as long as he persists in refusing to be vaccinated or to submit weekly negative Covid 19-test results at own cost. Ndaka disputed that the requirement to stay at home amounted to suspension.

After due consideration of the arguments presented, the Commissioner pronounced that Mr Kok was indeed suspended, but in the circumstances not unfairly so.

Analysis of the reasoning followed by the CCMA

The constitutional argument:

It was considered that the Occupational Health and Safety Act (OHASA) entrenches the common law principle that the employer is legally obliged to provide and maintain a safe working environment for its employees.

On the other hand, due cognisance was taken of the fundamental human rights articulated in Sections 12 and 15 of the Constitution.

While, at first glance and with mandatory vaccination under consideration, these two legal obligations seem to be mutually exclusive in its application. This perception is borne out by the following reasoning:

In order to provide a suitably safe working environment it would be reasonable to impose mandatory vaccination, at least in respect of some positions.

In doing so, one’s initial reaction is that it would amount to an infringement on the fundamental human rights involved here.

However, having regard to Section 36 of the Constitution dealing with the limitation of fundamental rights, it focuses the attention on the fact that no constitutional right is absolute.

Any fundamental human right can be limited for as long as the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. The reasonableness of such limitation hinges, among others, on the nature of the right being limited, the importance of the purpose of the limitation and the nature and extent of the limitation.

While the CCMA cannot determine constitutional issues, the fact that the employees concerned placed reliance on their constitutional rights in justifying their refusal to be vaccinated, brought consideration of the constitutionality of their arguments into play, although any pronouncement in this regard remains open to debate until constitutionally decided.

The constitutional arguments submitted by both these employees did however not prevent an ultimate pronouncement made in favour of the employer, thereby endorsing the reasonableness of mandatory Covid 19-vaccination adopted by these two employers.

How defensible is the dismissal of Mulderij on the basis of “permanent incapacity”?

Categorising Mulderij’s dismissal as incapacity, I would argue raises several questions.

Dismissal in South African labour law context can happen in basically 3 circumstances, namely:

  • As result of proven misconduct on the part of the employee justifying dismissal; or
  • As result of the employee’s redundancy occasioned by the employer’s operational requirements, having as outcome retrenchment; or
  • As result of incapacity on the part of the employee preventing him/her from performing in terms of the employment contract, which incapacity is either based on medical grounds, poor performance or incompatibility (the latter not articulated in the Labour Relations Act (LRA), but recognised within context of relevant case law).

Given the reliance on fundamental human rights, with specific reference to Sections 12 and 15 of the Constitution, one cannot really apportion blame to the employee for refusing to be vaccinated. From this follows that I would rule out misconduct as reason or justification for dismissal in these circumstances.

This leaves redundancy and incapacity as potential reasons, both of which are recognised in our law as “no fault” situations.

Thinking totally “out of the box” I pose the following question: Could Mulderij possibly have been regarded as “redundant” in any way, given her refusal to be vaccinated?

Normally, within redundancy context, the employer would introduce changes in the working environment for operational purposes, which could render the employee redundant e.g., introducing a shift system which the day shift employee cannot reasonably comply with.

Could it then not be argued that this is in fact what Goldrush has done, introducing mandatory vaccination into Mulderij’s conditions of employment based on legitimate operational requirements, which Mulderij, within reason, felt not comfortable with?

Would the result not be that Mulderij’s refusal to be vaccinated and so failing to comply with the change introduced by Goldrush not have rendered her redundant in the circumstances? Would offering her a severance package not have been a more humane and sensible option instead of dismissal in these circumstances?

Turning to incapacity as a possible justification for dismissal.

By definition, to be incapacitated, the employee would be incapable (through no fault on his/her part) to perform in terms of the employment contract, either medically or performance related.

Arguably, this was not the case in Mulderij’s case. At all material times she was quite capable to perform in terms of her employment contract. What prevented her from doing so was the employer’s obligation to provide and maintain a safe working environment and the employer safeguarding this obligation.

My considered view is that the commissioner erred (on the facts of the case) when finding that Mulderij was permanently incapacitated to perform in terms of her employment contract.

Lastly, within context of this analysis (still thinking outside the box), consider the following question:

To what extent could a supervening impossibility to perform in terms of the employment contract have been a basis on which to justify a dismissal in these circumstances?

Allow me to draw some analogy to illustrate the point which I am making:

The Financial Advisory and Intermediary Services Act (FAIS Act) requires employees in certain identified positions to be “fit and proper” in order to officiate in such positions.

Amongst others, the “fit and proper” requirements entail being honest, demonstrate integrity, being in good standing and being financially sound.

If for some reason an employee employed in an identified position falls short of being “fit and proper” and the element which is missing is not something the employee can be dismissed for – the employee may become insolvent, for instance. In my opinion (theoretically speaking) there could possibly exist a supervening impossibility to carry on officiating in the position concerned, which could justify a termination of services.

Then there still is the incompatibility proposition which could, arguably, provide some basis to justify dismissal where an employee refuses to be vaccinated and so becomes incompatible with the ethos, culture, and operational imperatives of the organisation.

In conclusion

The operative word with this blog is “thought-provoking” and the operative phrase is “thinking out of the box”.

I do admit that what I suggested in this blog, having done so purely from my personal point of view, is subject to be questioned, vigorously debated, and even opposed.

I certainly do not mind being constructively criticised for the viewpoints expressed by me – at least it stimulates lateral thinking, which is good within a learning context.

One thing that we can take out of the discussion of these two pronouncements by the CCMA in respect of mandatory Covid 19-vaccinations, is that it will probably not benefit anyone to base his/her arguments on unscientific and speculative beliefs and rhetoric or to adopt a single dimensional viewpoint in respect of rights and entitlements in general.

Adopting a well-balanced and holistic view on matters of common interest will always serve the individual and the society the best.

J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP

February 2022

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