Covid-19 Dismissing an employee during probation.

This is an arbitration award by Senior Part Time Commissioner Winnie Everett, CCMA Cape Town.

The Covid-19 saga at the CCMA continues.

The Code of Good Practice provides that the purpose of probation is to assess and review an employee’s performance. Can a requirement to be vaccinated against Covid-19 and failing to do so, lead to a dismissal contemplated and intrinsically linked to the purpose of probation, hence dismissing an employee for incompetency? Will a retraction of a dismissal stand if the employee do not accept such retraction?

The employee was employed on the 8th of September 2022 as a preferential procurement manager and her contract of employment was subjected to a 3-month probation period. At the time of the offer of employment, the employer included in the contract of employment a clause that informed the employee that the employer is considering a mandatory vaccination policy. The recruitment agent explained this to the employee, and it was not in dispute that the employee was properly informed that the employer may at some stage implement such a policy.

Two days after commencing employment, the employer send out an email to all staff about mandatory vaccination, advising staff that over the course of the next few months, the company will be embarking on a process to consider mandatory vaccinations and that they would ensure there is ample opportunity for all voices to be heard. In addition, they will also ensure ample time to implement, with a phased approach. Reasonable alternatives would be considered for compliance.

In line with the Consolidated Direction of June 2021 what followed was a good faith attempt by the employer to provide for educational opportunities to educate the staff in terms of the benefits of being vaccinated. Regular updated meetings were held on Mondays, Covid-19 workshops as well as medical experts were provided to consult staff. The employer advised that they would initiate debates during which employees can discuss the matter. The employer did, however,?inform that if an employee refuses to be vaccinated then fortnightly PCR-test would have to be submitted at the cost of the employee. The company also invited staff to object against the policy on any religious ground they may have.

It was the intention of the employer to implement the policy only at around March 2022 after a proper process of investigation, policy formulation and consultation. The employee attended one of these workshops and considering there was no debate, she scheduled an appointment with her manager for the 7th and 8th of December 2022 to discuss her status of not being vaccinated.

During the meeting the employee indeed questioned as to whether it was really necessary to submit fortnightly PCR tests. She also questioned as to why employees who are vaccinated don’t have to be submitting the PCR tests as it is well-known that vaccinated people can also be infected and transmit the virus. The employee stated that she is, however, considering being vaccinated and was not in principle opposed to the policy. She needed some more time to make up her mind and to seek further council on the matter.

In response, the employer informed her that considering her probation is technically coming to an end and in lieu of forthcoming implementation of the mandatory vaccination policy, that her services is terminated. It was required of her to serve her two-weeks of notice. The employer did, however, advised her that should she agree to be vaccinated that her termination would be retracted. The employer then sought legal advice and was informed that a better approached would be to retract the employee’s termination and to extend her probation until March 2022 or the time of the implementation of the policy. In essence, treat the employee the same as others and give her the same opportunity to make up her mind as to whether she wants to be vaccinated or not.

The employer heeded the advice and informed the employee that her termination had been retracted and her probation extended until the end of February 2022. In addition, the employee’s manager invited her to a staff party and even bought her a gift. The employee had a good time, however, in the subsequent days she send an email to the company to inform them that the extension of probation can only be done within the context of her performance or lack thereof. She was of the view that her probation cannot be extended for reasons relating to competency for failure to be vaccinated. She informed the company that she cannot work for an employer that when she merely asked some questions that her employment is summarily terminated and therefor the trust relationship is tarnished. She has no intention to continue with her employment based on the employer’s termination. Being surprised, the company accepted her email as her resignation from her employment.

The employee filed an unfair dismissal dispute, which eventually appeared before Commissioner Winnie Everett for arbitration. As a starting point, the existence of a dismissal had to be established. Considering the employer retracted the termination of the employee can the employee claim a dismissal?

The Commissioner argued that it is now established that when an employee resigns from her employment, and then seeks to withdraw her resignation, this can only be done with the consent of the employer. Similarly, where the employer has terminated the employment relationship giving notice of termination, it would only be valid with the consent of the employee. Considering the employee did not consent to the retraction of her termination, the dismissal remained in place.

Secondly the Commissioner dealt with the mandatory vaccination policy, and it was evident that the employer was well on its way to comply with the June 2021 Directive and that the fairness of the policy itself was not brought into question by the employee.

In terms of whether not being vaccinated can be deemed as a matter of competency and therefor fall within the scope of the Code of Good Practice (Probation), the Commissioner stated that the CGP is merely a guide and that it had been accepted that probation can be used to assess suitability for indefinite employment including incompatibility. It is arguable that an employer might even test misconduct to some extent. As example, an employee who frequently absent himself form work without good reason during probation is unlikely to be found suitable for indefinite employment.

It was evident though, that the employee was competent ito the performance of her job. She was compatible with her colleagues and there was no issue with her conduct. She was suitable for indefinite employment if not for her not being vaccinated.

It was without question that had she not asked for a meeting to discuss the matter of not being vaccinated, that her probation would have expired, and she would have been indefinitely appointed. In addition, the company, at the time of arbitration, still did not implement the vaccination policy. She would thus still have been in the employ of the company had she been more discrete and calculating.

The question then was as to whether being vaccinated is a ‘new competency’. In Dale Dreyer / Duncan Korable Attorneys, Dreyer was incapable of continuing his employment after refusing to vaccinate. In the circumstances of the case, the employee would have had to be aware at the commencement (or during) her probation?that vaccination was a new competency for the successful completion of her probation period. This was not the case as at commencement of her employment, she was merely informed that the company is considering such a policy.

As such, the requirement to be vaccinated may be regarded as a competency only if the employee is aware of the requirement and is given a fair opportunity to meet the requirement. The employee was not made aware that being vaccinated was a condition to successfully complete her probation. She was dismissed after discussion on vaccination she initiated in good faith. Her indefinite appointment should have followed her probation after which she would have had the same opportunity as the others to comply. If she still failed to be vaccinated, she would have still worked for another three months’ notice in accordance with her contract of employment.

The dismissal of the employee was found to be substantively unfair. In terms of procedure, it is accepted that procedural steps for a dismissal at the end of a probationary period does not need to be formal, however in this case no procedure was followed at all. As such, the dismissal was ruled to also be procedurally unfair.

What we learn from this case is first and foremost that should an employer dismiss an employee and later retracts, that it will only be valid once the employee accepts same. The same principle applies as to when an employee resigns, which is only accepted if the employer consents. It is once again, highlighted that in order to dismiss fairly from a substantive perspective, that compliance to the Consolidated Directive of June 2021 is required as dismissal cannot simply be an arbitrary decision. To dismiss for competency ito a probationary period, the employer must show that being vaccinated is a condition of probation and that the employee was made aware of the condition.

It is advisable for employers to seek professional advise. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email:?[email protected]