RETRENCHMENT AND NO SEVERANCE PAY FOR REFUSING TO BE VACCINATED

Cecelia Bessick v Baroque Medical PTY (Ltd) Case no: WECT13083-21

• The employer imposed a compulsory Covid-19 vaccination policy for its staff and the employee refused to comply with that policy.
• The employee was retrenched, as were three other colleagues who also elected not to abide by the compulsory vaccination policy.
• The employee was some 18 months away from her compulsory retirement, she confirmed during the arbitration proceedings that she was 64 years old. It was not disputed that at the time of her retrenchment, the employee had served the employer for 22 years.
• At the time of the employee’s retrenchment, the employer employed 107 staff members. The employer-supplied medical devices to various medical disciplines in the medical industry.
• The employee did not raise any concerns between the period 7 to 30 July 2021. The first time that the employer had become aware of the employee’s objections was on 30 July 2021 when she referred an email to the employer where she recorded that she was not willing to be vaccinated because of medical, personal and religious reasons.
• The correspondence called individuals who had concerns or objections to the vaccination to submit such concerns and to attend individual consultations.
• As regards the objection to medical, personal and religious reasons the employer recorded that it was unclear precisely what the employee meant by it.
• The employee mentioned "belief and opinion" in terms of section 13 of the Constitution, the employer contended that she failed to articulate in respect of what belief she was being discriminated against.
• The employer recorded that the right to belief and opinion cannot be expressed in a vacuum and the employee was not being persecuted for her belief or opinion. She was required, on rational and scientific basis, to protect herself, her colleagues and patients and clients against infection.
• The employer also recorded that the employee's reference to an immediate allergic reaction was unsubstantiated and was rejected.
• The letter concluded by affording the employee 72 hours to confirm that she will obtain the vaccine failing which the process is set out in Section 189 of the LRA would be invoked.
• On 6 September 2021, the employee was handed a notice in terms of Section 189 of the LRA.
• The alternative of repeated Covid testing has also been considered but the employer maintained that this was too high a risk and was also impractical. The employer also mentioned that they considered the option of working from home, but this would not be possible.
• The letter then recorded that no severance pay was proposed, and this was based on Section 41 of the Basic Conditions of Employment Act. The employer noted that whatever alternative position could be considered for the employee, the requirement remained that all employees be vaccinated.
• Part of the employer bundle consisted of a Covid-19 risk assessment document and the purpose thereof was to mitigate any possible risk of infection, transmission or cross-contamination of the Coronavirus between employees within the business. This led to the imposition of the vaccine policy.
• The evidence recorded that the employer has taken cognizance of the provisions set out in Sections 8 and 9 of the Occupational Health and Safety Act pertaining to the employer having to provide a working environment that is safe and without risk to the health of its employees.
• In a recent CCMA Award, Hospersa obo Meintjies v Huis Ravenzicht [WECT 387-22, issued on 19 April 2022, par 47 (See also Dreyer v Duncan Korabie Attorneys WECT 13114-21, issued on 7 February 2022)] the Commissioner detailed the requirements for implementing a mandatory vaccination policy.?
• On the facts, the Arbitrator concluded that the employer had made out a case for the retrenchment process that it embarked upon. The rationale for the decision to impose a mandatory vaccination policy was clear.
• The employer supplied medical products to a number of medical disciplines, and it engaged with hospitals, medical and related practitioners. To safeguard its own employees and ensure that the operation of the employer was not severely affected by absences (and even deaths) as a result of staff contracting the Covid-19 virus and that those entities and individuals that had contact with staff members of the employer were adequately protected, it embarked on a risk assessment of its position and emanating from that it became apparent that a mandatory vaccination policy had to be imposed.
• The necessity to vaccinate was correct.
• The Arbitrator was satisfied that there was a business rationale for the retrenchment.
• The procedural fairness of the dismissal was not challenged.
• The employer recorded that the version of the employee, as regards her medical condition, was never raised, despite being invited to disclose the details, until the arbitration proceedings
• The Arbitrator found that the employer was justified in introducing a policy of mandatory vaccination. The employee was aware of this requirement but elected not to comply therewith. That choice was hers and her employer respected her election.
• With reference to Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics v Chemical, Energy, Paper, Printing, Wood and Allied Workers Union [2013] 12 BLLR 1194 (LAC) and in Freshmark (Pty) Ltd v CCMA & others [2003] 6 BLLR 521, the LAC held that an offer by an employer to an employee of his or her position on different terms constitutes an offer of alternative employment.
• The Arbitrator found that the employee had the election to vaccinate and retain her employment.
• On the facts, her refusal to vaccinate had no merit and her refusal was unreasonable. It would be grossly unfair to expect the employer to pay any severance pay in the circumstances.
• The termination of the employee’s services on the basis of operational requirements was substantively and procedurally fair.

Comments

The procedure as laid out for the implementation of a compulsory vaccination policy is a nice guideline.

• Conduct a risk assessment of the workplace;
• Develop (or amend) a plan outlining taking into account employees' constitutional right to bodily integrity and freedom of religion (belief and opinion);
• Implement protective measures in the workplace;
• Identify measures regarding vaccination of employees;
• Consult with the Union/health and safety committee/employees on the plan;
• Notify all employees of the plan and the manner in which it intends to implement it;
• Educate employees on the dangers of Covid-19 and measures to prevent spread, as well as vaccinations available, their benefits and possible side effects;
• Give employees paid time off to be vaccinated;
• Inform employees that they have the right to refuse on medical and constitutional grounds;
• If an employee refuses, ask for the reasons and counsel the employee;
• If the refusal is based on medical grounds, refer to a medical practitioner; and
• If necessary, take steps to reasonably accommodate the employee as far as is reasonably practicable.
• Also, interesting but correct take on severance pay.

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