Mandatory vaccinations in the workplace: A minefield to navigate (part 1)

Recent CCMA rulings have placed the divisive and emotive topic of unvaccinated workers in the spotlight.

By Jaco Swart of the National Employers Association of South Africa.

In the recent CCMA case of Theresa Mulderij v. The Goldrush Group, the Commissioner found that the employee in this matter was permanently incapacitated and therefore fairly dismissed by the employer.

This award is viewed by many to grant employers the right to implement blanket mandatory vaccination policies and “fairly” dismiss employees who refuse to comply.

However, even a cursory reading of the award will reveal that there are some obvious shortcomings.

The nature of the dispute was classified as one of incapacity, which entails that the employee, by virtue of some characteristic of the employee, is no longer able to perform his or her duties.

The Labour Relations Act (LRA) does not define incapacity, however, in terms of the Code of Good Practice on dismissals, as contained in the LRA, there are only two types of incapacity dismissals:

  • The one is poor work performance, which deals with the inherent inability of an employee to meet a certain performance standard.
  • The second is ill-health incapacity, which relates to a physical or mental impairment, as a result of illness or injury, which renders the employee incapable of performing his or her duties.
  • A ‘third’ form of incapacity dismissal has been recognised by our courts as some sort of “general incapacity”, which deals with instances where an employee, for example, has lost his or her accreditation with a professional body which, by law, is required to perform a certain task.

The Commissioner did not indicate which form of incapacity was applicable in this instance. However, irrespective of which type the Commissioner deemed to be applicable, all of them require that some sort of inability to perform, on the part of the employee, is present. It is common cause that the particular employee had no impediment which prevented her from performing her duties. The impediment was created by the vaccination rule implemented by the employer and had no bearing on the capacity of the employee.

Therefore, the dismissal could never have been one based on incapacity and the true nature of the dispute was misconstrued by the Commissioner.

Further to this, the Commissioner seemingly conflated incapacity dismissals with misconduct dismissals. Incapacity dismissals are no-fault dismissals, which means that no fault is attributed to the employee for dismissal. It is clear that the Commissioner assigned fault to the employee for “refusing to participate in the creation of a safe working environment”. Fault is an element of misconduct and not incapacity.

Furthermore, apart from ignoring important evidence, the Commissioner did not consider section 36 of the Constitution, dealing with the limitation of rights, completely ignored the anti-discriminatory provisions of the Employment Equity Act (EEA), failed to take notice of the provisions of the Code of Good Practice: People with Disabilities, as directed by Annexure C of the “Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces” and was convinced of the fairness of the dismissal by an internal memo from a judge to his colleagues, which is not binding or, possibly, even permissible.

All of this, as well as several other issues render this award reviewable.

The current situation is therefore as follows:

The CCMA award is seemingly incorrect in both law and in the conclusion that the Commissioner reached and will not survive a review by the Labour Court.

It is not binding on any other Commissioner or any court and, therefore, does not have to be followed by any other presiding officer.

*The second part will be published on 8 February 2022.