Lest we rush to judgement

A plethora of articles and opinion pieces have been written by erudite professionals and labour experts in the past week following the arbitration award granted by the Commission for Conciliation, Mediation and Arbitration (CCMA) on 21 January 2022.

The award effectively upheld the employer’s decision to dismiss an employee on the grounds of incapacity for refusing to be vaccinated. The Commissioner found the employer to have acted ‘fairly’ in dismissing the employee and found the dismissal to be ‘substantively fair’.

In handing down her judgement, Commissioner Lungile Matshaka stated, "In my own sense of fairness, I can only conclude that the applicant is permanently incapacitated on the basis of her decision to not get vaccinated and, by implication, refusing to participate in the creation of a safe working environment".

Prior to implementing its mandatory vaccination policy (which was implemented to protect the health of its employees), the employer had spent three months consulting with its employees and their unions. Employees had to confirm receipt of the policy, confirm that its contents had been explained to them, and that they had read said policy. Employees not wanting or refusing to be vaccinated had to, in terms of the policy, apply for an exemption, such application being required to be reviewed by an evaluation committee established by the employer. The employer asserted that due to the nature of the employee’s job, she could not be transferred to another position, or to another department within the company.

I raised the following points/issues in my article, Vexed Questions on Refusing to be Vaccinated at the Workplace Remain, published two weeks ago on 14 January 2022:

• The dismissal of an employee is required to be both substantively and procedurally fair (to read legitimate)

• As per the LRA, there are three substantive grounds for legitimate/fair dismissal: misconduct, incapacity, and operational requirements

• I expressed the view that I did not believe ‘incapacity’ to be a legitimate ground for dismissal in instances where the employee refuses to be vaccinated

• I reiterated my previously made point that the legal position relating to the dismissal of an employee for refusing to be vaccinated remained untested in our courts

I remain firmly of the view that a dismissal by an employer as a result of an employee refusing to be vaccinated is required to be tested in a court of law.

It must be remembered that the CCMA is not a court of law. The courts in which such matters would have to be adjudicated are either the Labour Court, the Labour Appeal Court, or the High Court.

Until such time as the High Court declaratory order sought by Business for SA (B4SA) is made, the award handed down by Commissioner Matshaka last week will almost certainly have an influence on employers tasked with having to decide on whether they are able to use incapacity as a legitimate ground for dismissal in instances where an employee refuses to be vaccinated. Employers are advised, however, not to ignore the inherent risks associated with the taking of such decisions. Employers should exercise extreme caution when contemplating pursuing the ‘incapacity’ route in order to ‘justify’ any such dismissal.

Commissioner Matshaka’s arbitration award has not created a legal precedent. Yes, the decision is binding on both parties (employer & employee/applicant & respondent) however, this is only to the extent that the decision (the award) impacts that particular employee and that particular employer. A different Commissioner may well have arrived at a different decision. Only the substantive fairness of this particular matter was in dispute. Issues pertaining to procedural fairness (or the absence thereof) were not ventilated at the arbitration hearing.

The vexed question/s as to whether mandatory vaccinations at the workplace are reasonable, or indeed lawful, remain unanswered. The award should thus not be regarded as the panacea in respect of such matters. Workplaces differ, as do circumstances. Each individual case will, of necessity, have to be assessed on its own individual merits. Employers are urged not to deem Commissioner Matshaka’s arbitration award as being the ‘final word’ on this extremely controversial and contentious issue.

Employers are thus urged to approach the contemplated dismissal of employees for refusing to be vaccinated with extreme caution until such time as our courts provide the legal certainty and clarity we all urgently seek.

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