On 21 January 2022 the first arbitration award in regard to the dismissal of an employee for not adhering an employer’s Mandatory Vaccination Policy was issued by the CCMA.

The employer’s argument was that the employee should be vaccinated in the interests of creating a safe working environment, and that by refusing to be vaccinated, the employee was permanently incapacitated from being able to perform her job. The employer thus contended that the dismissal of the employee was fair.

The employee’s argument on the other hand was, inter alia, that her Constitutional rights to bodily and psychological integrity were being violated by being forced to be vaccinated.

The CCMA found that the dismissal of the employee was fair.

On the face of it, this award thus seems to have now settled two issues:

  1. employers can now easily dismiss employees for not adhering to an employer’s Mandatory Vaccination Policy, and
  2. employees no longer have any basis to refuse to be vaccinated when an employer has a Mandatory Vaccination Policy in place.

However, neither of the two issues have been settled by virtue of the CCMA award.

First and foremost, it remains to be seen whether the award will be taken on review to the Labour Court for a Judge to assess whether the decision reached by the Commissioner at the CCMA is a decision that a reasonable decision-maker could have reached based on the evidence that was before the Commissioner. It may well still happen that the arbitration award is reviewed and set aside by the Labour Court.

Apart from that possible outcome, the case at the CCMA was decided based on its own unique set of facts.

In this regard there are a number of critical aspects that the employer got right, without which, the result may have been very different, and the dismissal found to be unfair.

In the middle of 2021, the Department of Employment and Labour issued a Consolidated Direction which allows an employer, subject to specific guidelines, to give effect to a mandatory vaccination policy.

The very first step that the employer got right in the case at the CCMA in succeeding in proving that the dismissal was fair, was that it had a mandatory vaccination policy in place that complied with the Consolidated Direction that had been issued by the Department of Employment and Labour.

It will thus be of no assistance to an employer if it has a mandatory vaccination policy, which does not comply with the Consolidated Direction.

This for example includes conducting a risk assessment before even implementing a mandatory vaccination policy which involves considering the company’s operational requirements, and an assessment of the employees themselves, and then determining which employees need to be vaccinated.

Having identified those employees who in the opinion of the employer are required to be vaccinated, there must then be a plan in place to implement the vaccination of those identified employees. This in itself involves ensuring that various facets of the Consolidated Direction are adhered to.

From the perspective of the employee, 2 examples in determining the fairness of any disciplinary action taken against the employee for not complying with a mandatory vaccination policy would be :

  1. whether the employer complied with guidelines of the Consolidated Direction and its various obligations, and
  2. if an employee has objected, or wishes to object to being vaccinated, whether in doing so, the employee has advanced sufficient evidence, within the permitted grounds for such objection to be successful.

The CCMA arbitration award is therefore just the start in determining matters relating to the enforcement of mandatory vaccination policies, and both employers and employees would be well advised to seek legal advice in regard to the issue of a mandatory vaccination policy, as the success or failure of a case at the CCMA could hinge on that one document and processes related to it.

Article written by Craig Berkowitz

Specialist Labour lawyer and Acting Judge in the Labour Court of South Africa

Craig can be contacted on 083 453 1822 or by email at cblaw@netactive.co.za