Companies must show there is a correlation between mandatory vaccination and economic viability of the business.
Sibusiso Dube, partner at Bowmans law firm, says whether a mandatory vaccination policy can be regarded as an operational requirement will depend on the unique nature of each business.
“Employers will be required to show objectively that the implementation of a mandatory vaccination policy has a bearing on the economic viability of the business,” he says.
Sibusiso’s comments follow a recent arbitration award in the matter between Cecelia Bessick and Baroque Medical Pty (Ltd), where the CCMA found that the employer’s decision to retrench the applicant, due to her refusal to comply with the employer’s mandatory vaccination policy, was substantively and procedurally fair.
In its ruling, the CCMA found that Cecelia’s decision to refuse to adhere to the company’s mandatory vaccination policy was unreasonable and therefore she was not entitled to severance pay.
She had refused to comply with the policy on medical, personal, and religious grounds. She also declined to be vaccinated based on her constitutional right to bodily integrity.
Her reasons, however, the company found, were not substantial enough.
Before the CCMA, the employer argued that considering the position of the applicant, her duties were such that she had frequent contact with colleagues who engaged with third parties in the healthcare industry.
The company contended that due to the nature of the work of the employees, they had high exposure to Covid-19.
The CCMA ruled that the employer had made out a case and a clear business rationale for retrenching the applicant as her evidence to establish a basis for her objection to vaccination was insufficient.
The commission held that it would be grossly unfair for the employer to pay severance pay as her reasons to not vaccinate were unsubstantiated.
“Employers are encouraged to seek legal advice before taking any action against employees for their refusal to comply with mandatory vaccination policies,” says Sibusiso.