Vexed Questions on Refusing to be Vaccinated at the Workplace Remain

A very Happy New Year to my Readers. May 2022 herald new beginnings, an end to the scourge of the virus, and provide us all with renewed hope, strength, fortitude, compassion and wisdom.

As we enter the third year of Covid-19, the vexed question of whether employers can introduce mandatory vaccinations at the workplace comes into sharp focus. Perhaps a more vexed question is whether an employer can dismiss an employee for refusing to get vaccinated. Even more vexed is the question of whether such a dismissal would withstand the scrutiny of the courts.

I first discussed the issue of mandatory vaccinations at the workplace in my article, Vaccinations and their Impact on the Workplace published on 29 April 2021. I wrote at the time, ‘With all said and done, employers will be required to balance their health and safety obligations with that of the constitutional rights of their employees. Robust and vigorous debate regarding this issue is guaranteed’.

My prediction has been proven to be spot on - the debate continues to rage. The debate will only quieten once the dismissal of an employee for refusing to be vaccinated is tested in a court of law.

To this end, Business for SA (B4SA) is seeking a High Court declaratory order to provide companies with legal certainty in the event of such companies wishing to introduce policies making it compulsory for employees to be vaccinated.

There are two tenets upon which South African labour law relating to the dismissal of an employee rely, namely, substantive and procedural fairness. This suggests that a dismissal is deemed to be unfair (to read illegal) in the event that an employee is dismissed unjustly, or in the event of the employer not following a fair procedure pursuant to said dismissal.

Enshrined in the Labour Relations Act (66 of 1995) [LRA] are three substantive grounds for legitimate (to read fair) termination of employment (dismissal) by the employer, namely, misconduct by the employee; incapacity of the employee; and the operational requirements of the employer’s business.

Misconduct

Misconduct as a ground for dismissal relates to the employee being in contravention of a workplace rule. The rule must be one that is lawful and reasonable, the employee must have had knowledge of the rule; the rule must be uniformly applied, and dismissal must be the appropriate sanction in the circumstances.

The question arises as to whether a refusal by the employee to be vaccinated warrants dismissal based on misconduct. My view is that it would not.

Incapacity

Dismissals relating to the incapacity of the employee is when the employee renders poor work performance or fails to meet a certain performance standard. Incapacity is also considered when the employee is proven to be incapable of performing the work he/she is contractually obliged to carry out, as a result of poor health or an injury.

The question arises as to whether an employer can dismiss an employee for refusing to be vaccinated due to the employee being incapacitated. My view is that it cannot.

Operational requirements

Operational requirements relate to the economical, technological and structural requirements of the employer. Dismissals contemplated due to the employers’ operational requirements are typically conducted in accordance with Sect 189 of the LRA.

Dismissals based on the operational requirements of the employer are categorised as ‘no-fault dismissals’ thus the employee is not responsible for the termination of his/her own employment. The LRA places particular obligations on an employer in order to ensure that all possible options to dismissal are explored and that employees engage in a consensus-seeking/consultative process with their employers.

However, in instances whereby an employee refuses to be vaccinated prior to the employer having to dismiss based on operational requirements, the employer would have to follow the steps as set out in the directives. Only in instances where an employer is not able to reasonably accommodate the employee in a position that does not require the employee to be vaccinated can the employee be dismissed.

In terms of the Consolidated Directions on Occupational Health and Safety Measures gazetted on 11 June 2021 (pursuant to the National Disaster Regulations), the implementation of a mandatory vaccination policy within a workplace is not as straightforward as it appears. I addressed this particular issue extensively in my article, New Rules – Vaccines can be made Mandatory at the Workplace published on 18 June 2021.

I wrote at the time that employers intending to introduce mandatory vaccinations had to first undertake a comprehensive risk assessment, had to identify those employees working in environments where the risk of transmission was high due to the specific nature of the employee’s work, and had to determine where the risk of severe Covid-19 disease (or indeed death) was high due to the vulnerability (age or comorbidities) of the employee.

Notwithstanding the fact that the employer may have undertaken the requisite risk assessments and may well have an articulated vaccination plan and program in place, an employee can, of course, still refuse to be vaccinated. The vexed question then arises – can an employer legally dismiss an employee for refusing to be vaccinated?

Employees who refuse to be vaccinated could, if they so wish, rely on a right contained in the Constitution. Section 15 of the Constitution deals with the right to freedom of conscience, religion, thought, belief and opinion. Furthermore, employees refusing to be vaccinated could rely on section 12 of the Constitution. Section 12 deals with the right to bodily integrity, or refusal on medical grounds.

Employees refusing to be vaccinated on Constitutional grounds will, however, have to show that such refusal forms part of their religious beliefs and/or their system of beliefs, such beliefs having to be proven over a protracted period of time. Should an employee refuse to be vaccinated on medical grounds, they would have to demonstrate that receiving the vaccine poses an adverse medical effect on them and their health.

I alluded to human rights activist and lawyer Schalk van der Merwe’s views and opinion in my article Dismissed for not being vaccinated published on 23 November 2021 in which he 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 was 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 thus, “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”.

In the event of an employee refusing to be vaccinated based on constitutional or medical grounds, the employer would be well advised to consider a range of factors before contemplating dismissal. These would include the counselling of the employee and encouraging the employee to seek guidance from a health and safety representative, a worker representative, a shop steward or trade union official.

Once the employer has determined that it is necessary for employees in a specific environment at the workplace to be vaccinated based on the particular circumstances within that specific area/environment, the employer must then make every reasonable effort to accommodate the employee in a position that would not require the employee to be vaccinated. Employers would be well advised to pursue this option at workplaces where this is practically possible.

Should an employer not be in a position to accommodate the employee, or in the event of the employer having taken all reasonable steps to redeploy the employee, and the employee still refuses to be vaccinated as per the vaccination plan, the employee does face the risk of dismissal.

As stated earlier, a dismissal must be both substantively and procedurally fair. Procedural fairness deals with the procedural steps that must be followed during the process of a dismissal. Employers are urged to ensure that procedural fairness prevails throughout the process where dismissal is contemplated. It, therefore, follows that the rules relating to a fair procedure as set out in the LRA are to be applied in instances whereby dismissal is contemplated as a result of the employee refusing to be vaccinated.

The legal position relating to the dismissal of an employee for refusing to be vaccinated impacts both employer and employee. Such dismissals remain untested in our courts. The vexed questions of whether an employer can fairly (to read legally) dismiss an employee for refusing to be vaccinated, and whether such dismissal would be permissible in terms of the LRA will, hopefully, be answered by the High Court in its declaratory order. We await this Order with eager anticipation.

At the time of writing this article, no fewer than 16 South African companies have indicated their intention of introducing mandatory vaccination policies and procedures in their organisations in 2022. These are:

Anglo American Mediclinic

Aspen MTN

BIG Concerts Multichoice

Dis-Chem Old Mutual

Discovery Right to Care

ENS Africa Sanlam

EY Sappi

Life Health Care Standard Bank

The following South African Universities are planning to introduce vaccine mandates in 2022:

Stellenbosch University

University of Cape Town

University of the Free State

University of Johannesburg

University of the Western Cape

University of the Witwatersrand

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