In a recent arbitration award in Cecelia Bessick v Baroque Medical Pty (Ltd), the Commission for Conciliation, Mediation and Arbitration (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.
Further, the CCMA found that the applicant's decision to refuse to adhere to the employer's mandatory vaccination policy was unreasonable and, therefore, she was not entitled to severance pay.
The employer was a supplier of medical devices to various third parties in the healthcare industry and is classified as an essential service. On 22 July 2021, the employer advised its staff that it would be imposing a compulsory covid-19 vaccination policy given the nature of its business operations. In terms of the policy, vaccination in the workplace was an operational requirement and the policy was a health and safety resolution.
The applicant refused to comply with the policy on medical, personal and religious grounds. The applicant further declined to be vaccinated based on her constitutional right to bodily integrity. The employer recorded that despite providing reasons for her unwillingness to vaccinate, the applicant did not provide sufficient support to substantiate these.
The employer considered alternatives to retrenchment, which included:
- allowing employees to object to vaccination;
- repeated covid-19 testing; and
- allowing employees to work from home.
These alternatives were found to be impractical.
Pursuant to a consultation process in terms of section 189 of the Labour Relations Act of 1996 (LRA), the applicant was handed a notice of termination.
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. Further, as an essential service provider, the company's employees had high exposure to the virus given the nature of the work performed and the open-plan office set-up. Therefore, the risk of transmission was high.
The commissioner found that the risk assessment that the company had conducted, as well as the mandatory vaccination policy, met the requirements set out in the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces, despite not having been challenged by the applicant.
The commissioner then had regard to the meaning of operational requirements as defined in section 189 of the LRA, which he noted is defined as "requirements based on the economic, technological, structural or similar needs of an employer". He then considered the issue of "similar needs of an employer" and stated that the employer must be able to establish that the dominant purpose of the retrenchment is the economic viability of the employer's business.
The commissioner found that the employer had established a case and a clear business rationale for retrenching the applicant for the following reasons:
- the employer had provided a clear rationale for the imposition of a mandatory vaccination policy given the nature of the work that the employer engages in;
- the imposition of a mandatory vaccination policy was necessary to ensure that the operations of the employer were not severely affected by absences as a result of employees contracting covid-19 and to ensure the protection of third parties interacting with the respondent's employees; and
- the employer had embarked on the appropriate risk assessment of its position and duly justified why it was necessary to impose a mandatory vaccination policy as a justifiable operational requirement.
It was further held that the evidence of the applicant was insufficient to establish a basis for her objection to vaccination, and it was accepted that whatever alternative position the employer could have considered the applicant for, ultimately the requirement that all staff members had to vaccinate remained.
Finally, regarding whether the applicant was entitled to severance pay, it was held that the applicant's election to refuse vaccination was unreasonable and without merit. Therefore, it would be grossly unfair for the employer to pay severance pay given the circumstances.
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.
Employers are encouraged to seek legal advice before taking any action against employees for their refusal to comply with mandatory vaccination policies.
For further information on this topic please contact Sibusiso Dube at Bowmans Law by telephone (+27 21 480 7800) or email ([email protected]). The Bowmans Law website can be accessed at www.bowmanslaw.com.