Commissioner finds that the employee was ‘’permanently incapacitated” by not being vaccinated.
In a first since the start of mandatory workplace vaccination policies, the Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that the dismissal of an employee for refusing to be vaccinated against Covid-19 was fair.
The commission found that the employee could be dismissed because she had “refused to participate in the creation of a safe working environment”.
The employee, who was a business and training officer, approached the CCMA to appeal her dismissal for “incapacity” and sought either to be reinstated or full compensation.
During the hearing, company representatives said that a three-month consultation period, with unions and employees, took place prior to the adoption of its mandatory workplace vaccination policy. Staff had been given information on the benefits of vaccination and specialists, including a doctor, traditional healer, virologist and a human rights commissioner had been made available to answer questions.
The policy included a provision for exemption. Although the employee had initially attempted to get a medical exemption, she was unable to and thereafter she applied for exemption on the grounds of her constitutional right to bodily integrity.
This application was turned down by the company’s exemption committee, which “identified her as a high risk individual who interacts with colleagues daily whilst on duty in confined, uncontrollable spaces”, putting her at risk and exposing other colleagues to risk.
The employee appealed the decision internally and it was rejected.
At the CCMA hearing, the employee explained that she strictly followed Covid-19 protocols, did not trust the vaccine and was concerned about it.
In his findings, Gauteng commissioner Lungile Matshaka said the mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps.
He found that the employee was “permanently incapacitated” on the basis of her decision not to get vaccinated and her refusal to participate in the creation of a safe working environment, and concluded that the dismissal was substantively fair.
