Uncertainty on fairness of dismissing anti-vaxxers

The latest CCMA ruling is a warning to employers to accommodate anti-vaxxers before dismissing them

Early in 2022 the Daily Maverick reported on a case where an employee was dismissed for refusing to be vaccinated against Covid.

In that case Miss Mulderij applied for exemption from the employer’s vaccination policy on the grounds that the Constitution gave her the right to bodily integrity, but she was turned down. When she refused to be vaccinated she was dismissed for reasons of incapacity.

The CCMA arbitrator found that her dismissal was fair essentially because first, the employer’s mandatory workplace vaccination policy, from its drafting up to its implementation, had followed all the crucial steps. Second, the employee had refused to participate in the creation of a safe working environment.

Several arbitration decisions followed upholding the dismissal of anti-vaxxer employees.

However, the CCMA more recently found against the retrenchment of an anti-vaxxer. In the case of Kgomotso Tshatshu vs. Baroque Medical the employer’s mandatory vaccination policy was based on the operational need to avoid employees missing work due to illness and to ensure a safe working environment for its employees.

Miss Tshatshu refused to be vaccinated, claiming that she had suffered an adverse reaction to the flu vaccine she had previously received. She provided the employer with two medical certificates confirming this claim.

Despite this she was retrenched without receiving any severance pay because the employer had found that the medical certificates that she had provided were neither reasonable nor substantiated. When the employee took her dismissal to the CCMA the arbitrator found in her favour.

I understand the arbitrator’s ruling to be as follows:

The employer did not provide any evidence that a blanket mandatory vaccination policy had been effective in any other organisation. Mandatory vaccination policies are illogical and fruitless because employees are frequently exposed, outside of the workplace, to many unvaccinated people.

As a result, employees are still at risk of contracting Covid-19 whether they are vaccinated or not. The employer did not submit any evidence relating to the risk assessment that it had claimed to have conducted prior to implementing its vaccination policy.

This might have been because the risk assessment had never been carried out or because the employer did not want to submit its results.

The employer’s policy document did not deal with the reasonableness of the mandatory vaccination requirement.

No alternative to retrenchment, other than getting vaccinated, had been offered to the applicant.

The Commissioner disagreed with the employer's argument that the applicant was not entitled to severance pay. The dismissal was substantively unfair, and that the applicant was entitled to 12 months’ severance pay.

The Tshatshu decision is the first one I am aware of where the CCMA has found in favour of the dismissed anti-vaxxer. It appears that the reason for this divergent decision could be the following:

The arbitrator may have a different attitude to forced vaccination as compared to the commissioners in the other cases. This possibility is indicated by the arbitrator’s comment that mandatory vaccination policies are illogical.

The employer failed to prove, by submitting a risk assessment report, that the employee’s vaccination was necessary to avoid a health risk.

The employer’s policy document did not deal with the reasonableness of the mandatory vaccination requirement.

It does not appear that the employer, in this case, tried to accommodate the employee
The employee submitted two medical certificates in support of her claim that she reacted badly to vaccinations.

The above factors do distinguish this case from the Mulderij case; and the outcome acts as a warning that employers must:

  • Take proper cognisance of medical certificates
  • Prove via proper risk assessments that vaccinations are essential
  • Try to accommodate anti-vaxers before considering dismissing them