Suspending employees for failure to vaccinate.

The whole discussion around mandatory Covid vaccination policies in the workplace and the subsequent dismissal or suspension of employees, refusing to be vaccinated is a hotly contested debate in South Africa at the moment. The legal fraternity seems divided. Being early stages in litigation, we are lacking clear precedent. What complicate matters is the many aspects of the conversation. People want a clear differentiation between ‘right’ and ‘wrong’, yet the LRA, mostly deals with reasonableness as far as dispute resolution goes. Then there is the reasonable expectation to a safe working environment in terms of the Health & Safety Act. Then of course, the Constitution that upholds the right to privacy, bodily integrity, freedom of choice, but it also provides for the limitations of rights.

The CCMA, however, started to give some direction in this debate. One should be aware though that the CCMA is not a court of law and is a creature of statute and awards does not create precedent, but it does make a valuable contribution to the existing debate and is an indication of how the conversation may evolve in the courts.

In Gideon J Kok, vs Ndaka Security and Services (2022), the employee was employed as a Safety Practitioner since August 2019. In essence, he claims that he was unfairly suspended and thus subjected to an Unfair Labour Practice in terms of Section 186 (2) of the LRA.

The employee’s claim was that he was instructed not to return to his workplace until he had been vaccinated against COVID-19 in the alternative he should submit a weekly COVID-19 test result. The company’s client, SASOL, had a 100% vaccination rate and as such he was unable to perform his duties at SASOL and was subsequently informed to remain at his residence.

Does this act of instructing an employee to remain at home amount to a suspension?

The company stated that they did three separate Risk Assessments during May 2020, June 2020 and October 2021. The Department of Employment and Labour issued directives and as a company they responded accordingly. In terms of the Disaster Management Act, the company was regarded as an essential service, which implied that its employees worked on the front-line and had close contact with other employees and members of the public.

The company further stated that the Consolidated Directive of 11 June 2021 granted a discretion to employers when deciding on the issue of compulsory vaccination. It did not prohibit compulsory vaccination, but prescribed a certain process to follow. The company followed due process, provided the three Risk Assessments, with the employee being identified as a person to be vaccinated, as the employee shared an office with ten other employees. The employee did previously contracted?COVID-19 and tracing revealed that there was a huge possibility that several colleagues contracted the disease from him. The entire office had to close as they had to self-isolate. It was not possible to allow the employee to work from home or in an isolated office as he was physically involved with guards, client and the public. An agreement on the company’s policy was also reached with the union.

The company stated they did not suspend him, but merely instructed him to stay at home or to submit a weekly COVID test result.

The Commissioner highlighted that in City of Tshwane Metropolitan Municipality v SALGBC and Others the Labour Court held that:

“typically, suspension cases are decided within the context of disciplinary action and are either punitive or precautionary and it is not surprising that the definition of suspension would be fitting within that context. There is, however, nothing in the LRA that states that the definition is limited to the extent that any suspension takes place outside the realm of disciplinary action, is to fall outside the ambit of the LRA.”

Also

“The Court endorsed a less restrictive interpretation of the definition of suspension to ensure employees enjoy protection in terms of section 23 of the Constitution and section 185 of the LRA.”

In casu, the evidence clearly demonstrates that the employee was denied access to his workplace and his access card was blocked. He was also informed he should not enter the work premises until he was vaccinated, or he should present a weekly negative result. The Commissioner found that he has no doubt that the action of the company fell within the ambit of a suspension.

The Commissioner noted that the company complied with the instructions from national government, did the Risk Assessments, using the correct templates as was provided for by the Dept of Employment and Labour. The assessments were also submitted to the Department, and it was apparent that it complied with the Department’s requirements.

The Risk Assessment identified certain employee who had to be vaccinated. The employee’s access card was only blocked after extensive attempts to persuade him and he was also presented with an alternative solution, namely, to submit weekly COVID negative results. In addition, other employees were vaccinated, and they were accommodated.

It is evident that the decision of the company was not taken on a whim and due process was followed. This matter inevitably raises a Constitutional question. Human rights are protected in the Constitution with specific reference to section 11 (right to life), 12 ({right to freedom and security), 14 (privacy) and 15 (religion, belief and opinion). Section 12 (2) provides that every person has the right to bodily and psychological integrity, which includes the right to make his or her own decisions regarding reproduction; to security in and control over their body; and not to be subjected to medical or scientific experiments without their informed consent. It further guarantees that every person has the right to make decisions about his or her own health and treatment, which includes the right to be vaccinated or not. This is the clause the employee was relying on.

It is also so that Constitutional rights may be limited where there are justifiable grounds for doing so. Section 36 of the Constitution provides for the limitation of individual constitutional rights in so far as it is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom and having regard to (i) the nature of the right (ii) the importance of the purpose of the limitation (iii) the nature and extent of the limitation (iv) the relation between the limitation and its purpose; and (v) less restrictive means to achieve the purpose. No right is therefore absolute.

In Minister of Safety and Security and Another v Gaqa, the court relied on the public interest and applied a balancing act of rights to conclude that an individual was forced to undergo surgery, even though he did not consent to it. Even though the CCMA cannot determine constitutional issues, the employee’s reliance on the Constitution, necessitated a consideration of these factors in deciding whether his suspension was fair or not.

The Commissioner considered that the vaccination has shown a demonstrable success in limiting severe illness and transmission and the employee was unable to provide any evidence to the contrary. There was a very limited chance of adverse effects as a result of the vaccination. There is a clear relation between the limitation and its purpose. Less restrictive measures, like sanitizing and wearing face marks are already in place. Vaccination is the last resort in curbing the pandemic.

The employee will have to prove that his suspension was unfair as the aim of being vaccinated is to ensure a safe working environment for everyone, to protect lives and livelihood. The employee also relied on the fact that he was a Christian, however, failed to demonstrate that a Christian is not subjected to be vaccinated.

The company also had to apply its mind to the Health and Safety Act, with Section 8(1) reading:

“Every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of his employees.”

The Commissioner ruled that the employee was indeed suspended, but that his suspension was fair.

What we learn from this case is that this matter on mandatory vaccinations in the workplace is complex and multi -tiered. People and communities approach the matter from a background of beliefs, opinions, convictions, religion, but simultaneously there are various laws, such as the Constitution, LRA, the Employment Equity Act and the Health & Safety Act to consider. In addition, there are government regulations as well as the limitation on rights that all contribute to the conversation. Even though there is a lengthy journey ahead of us, two matters are clear. Firstly, an employer cannot simply implement mandatory vaccinations on the whim and that they will have to commit themselves to the process and in accordance with government regulations and directives. Secondly, that within the proper context, our constitutional rights may potentially be limited in circumstances whereby it is within the public interest to do so. Still early days, but the legal process has started.

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]

visit: www.effectusharmony.co.za