Dismissed for not being vaccinated

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The CCMA has received at least 10 referrals by disgruntled employees who have either been dismissed or retrenched by their employers for being unvaccinated. This is despite the fact that vaccines are not yet mandatory in South Africa.

In my article Vaccinations and their Impact on the Workplace first published on 29 April 2021, I drew the analogy between Hamlet’s ‘To be or not to be’ with whether to vaccinate or not, and questioned whether employers could, or indeed should, make vaccinations in the workplace compulsory.

I alluded to the legal debate which was raging (and continues to do so) as to whether employers could make the administering of the coronavirus vaccine compulsory for employees. I discussed the rights of employees and, specifically, the rights of all employees to a safe and healthy workplace.

I concluded my article by suggesting that employers would be required to balance their health and safety obligations with that of the constitutional rights of their employees, and that vigorous and robust debate regarding this highly charged and sensitive issue was guaranteed. I have not been proven wrong in my initial analysis of the situation.

Adding to the debate is the recent announcement by the Department of Labour that employers making Covid-19 vaccinations mandatory for their employees will have to compensate their employees in the event that they suffer any side effects, illness or death as a result of them being vaccinated.

Whilst President Cyril Ramaphosa has declared that Covid-19 vaccines are not mandatory, he left the door ajar for individual companies and employers to formulate their own policies in this regard.

To this end, and by way of example, Discovery — one of the country’s largest medical aid scheme administrators — announced that it would ensure the safety of its employees by making Covid-19 vaccinations mandatory for all employees from January 1, 2022.

Fraser Alexander, a South African based mining services company, said it too would be implementing a mandatory vaccination policy from January 1. The company said it would require proof of vaccination from all its employees, sub-contractors, and service providers from the beginning of 2022.

The University of Cape Town recently announced a variety of restrictions for unvaccinated students, some of whom may not be allowed back on campus from January 2022.

In an open letter to the public, Piet Mouton, CE of PSG, a leading financial services and asset management company, called for the imposition of mandatory vaccinations, saying that this was a “necessary step for the battered SA economy to open up”, adding that “people who choose not to be vaccinated should be denied entry to restaurants, public parks, shopping centres, airports, business and educational institutions”.

Human rights activist and lawyer Schalk van der Merwe, however, insists that employees who reject forced vaccination from their employers are enforcing their own rights, and are protected in this regard by both the Labour Relations Act as well as the Constitution.

Van der Merwe’s advice to employees is for them not to “accept bullying, threats, bribes, coercion, disciplinary action or suspension for exercising their human rights against forced Covid-19 vaccination”.

He implored employees to respond by saying, “I am exercising my Non-Derogable Right in terms of Chapter 2 of The Constitution of the Republic of South Africa, Act 108 of 1996, as Amended. I choose not to receive a Covid-19 vaccine. Furthermore, I exercise my rights as an employee and remind you of Section 192 (2) of The Labour Relations Act, Act 66 of 1995, as Amended, read with Schedule 8 of the Act. If I am dismissed unfairly, I will refer the case to the CCMA, Bargaining Council if applicable, or the Labour Court”.

Van der Merwe said he had received more than 5 000 complaints of human rights infringements against employers who have forced their staff to vaccinate.

According to Raynauld Russon, a Socio Therapist, “Employers run the risk of contravening the Nuremberg Code of 1947” which prohibits the “pushing of experimental vaccines”.

Russon cautioned that vaccines were still on trial and that, as such, the introduction of mandatory vaccines violated the code as it “required voluntary consent and extensive disclosure”.

Cosatu spokesperson Sizwe Pamla said the Union had received a number of complaints from employees who had been told by their employers that they had to be vaccinated or face dismissal.

“We are intervening in those instances, including helping the employees to register their cases with the CCMA. We are also engaging those employers to reverse the dismissals and to persuade the workers on why it’s important for them to vaccinate,” he said.

Pamla said Cosatu strongly supported the need for everyone to vaccinate as they have been proven internationally to be safe and highly effective in the saving of lives, “but could not support the dismissing of workers”.

“Cosatu believes a compulsory vaccine mandate is not helpful and in fact a distraction. The only way to get people to vaccinate is to persuade them. Cosatu's affiliates are working with employers through our Shop Stewards to engage workers to address concerns and resolve problems," said Pamla.

National Education Health and Allied Workers Union (NEHAWU) spokesperson Lwazi Nkolozi said South Africa was a constitutional democracy and that the Constitution was the supreme law of the land which could not be violated by anyone, not even the President.

He said that even though the Union had called on the government to produce vaccines and to speedily roll out the vaccination programme, it did not support forced and mandatory vaccination of employees at the expense of their constitutional rights.

“NEHAWU shall never allow the government and employers to change conditions of employment of workers arbitrarily and subject workers to such a treatment of forcing them to vaccinate. We won't stand idle while they abuse workers by taking their constitutional rights away from them," Nkolozi said.

National Union of Metalworkers of SA (Numsa) spokesperson Phakamile Hlubi-Majola said the Union strongly encouraged vaccination, and that they had not received any complaints thus far.

Footnote

The vexed question of whether or not the introduction of mandatory vaccinations at the workplace is constitutional, legal or indeed moral, persists. Employers would be well advised to balance their health and safety obligations and responsibilities with that of the constitutional, legal and religious rights of their employees – it really is as simple or as complicated as that.

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