Dismissal on fair ground
The employment law experts at Cliffe Dekker Hofmeyr (CDH) hosted a webinar where they reflected on the impact of COVID-19 on the workplace, mandatory vaccination policies and the resultant disputes, laws and policies in place to regulate employment conditions during the pandemic, the impact of exemptions to mandatory vaccination policies as well as a brief overview of the growing trends in the world of work.
Impact of COVID-19 on the workplace
“Now in its third year, the COVID-19 pandemic has brought many changes and still challenges the world-over. One area of life that has been thus drastically affected is employment, and to date, many employers and employees still grapple with finding the proper adjustment in workplace practices in the wake of what has since become the ‘new normal’, said Imraan Mahomed, Director in Employment Law.
Kgodisho Phashe, Associate in Employment Law added that, “The COVID-19 pandemic introduced a new normal into the workplace. For months, government regulations prevented many businesses from operating. In the circumstances, employers had to find innovative ways of carrying out their daily business. Chief among these was remote working, where employees who did not have to be in the office worked from home. This brought about many benefits and an equal number of problems. As the world slowly moves out of the worst of the pandemic and many businesses begin to reopen, some employers have opted to retain a part of the remote system, resulting in a hybrid system, where employees may work from the office or remotely. This has fundamentally transformed the workplace for the foreseeable future.”
Vaccination policies and related disputes
“On 11 June 2021, the Minister of Labour and Employment published an Amended Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Directive). The Directive explicitly permits an employer to impose mandatory vaccination policies in the workplace, subject to it conducting a risk assessment and certain other peremptory requirements. One of these requirements is that the employer must afford employees the opportunity to register reservations and apply for exemptions either on medical grounds, or religious grounds,” continued Phashe.
“In TM v Goldrush Group[1] (Goldrush) an employee was dismissed for her refusal to be vaccinated, citing her Constitutional right to bodily integrity. She requested and was refused an exemption by the employer's Exemption Committee. The Commissioner held that the dismissal was fair on the ground that the employer had undertaken a fair process in drafting the policy and in communicating it to the employees. The Commissioner was further persuaded of the fact that requirements of the employee's job required her to interact with people, and her continued refusal to get vaccinated would compromise the safety of the workplace. The Commissioner thus found that the employee had been permanently incapacitated as she had no intention of ever getting vaccinated; therefore, her dismissal was fair,” said Phashe.
“In Kok/Ndaka Security and Services, an employee (Mr Kok) was suspended for his refusal to receive the vaccine. The employer is in the private security sector, with its primary client being Sasol Ltd. Sasol required a 100% vaccination policy, and Ndaka Security felt pressured and required all its employees to become vaccinated. When several employees registered reservations to the vaccine, Mr Kok provided alternative measures in order to accommodate those employees and keep the workplace safe. An alternative to the employees refusing to be vaccinated was a caveat that they provide a weekly negative COVID-19 test at their own cost. After several weeks, Mr Kok decided this was financially onerous and discontinued the practice, whereupon he was dismissed. Before the CCMA, he argued that the employer's policy offended his Constitutional right to bodily integrity,” said Phashe.
“Unlike in Goldrush, the Commissioner undertook a clear Constitutional analysis in this case. He outlined the brief development of Section 12 in the context medical practice, where it has often been found that medical necessities geared to protect the whole community may sometimes justifiably limit the right to bodily integrity. He further undertook a Section 36 analysis, finding that there was a compelling interest that required a limitation of the employee's Section 12 right, and that interest was in providing a safe environment for all employees and clients. As a growing trend, the CCMA appears to be looking favourably upon mandatory vaccination policies, so long as the employer acts reasonably through due consultation with employees and strict adherence to the Directive,” added Phashe.
Laws, policies and exemptions
Liso Zenani, Candidate Attorney said, “As stated, the Directive paves the way for employers to implement mandatory vaccination policies. To survive legal scrutiny, however, the adoption of such policies must follow a wholistic process. The employer must consider, among other factors, the viability of continued remote work; the number of vulnerable employees in the workplace; the effectiveness of additional PPE where necessary; temporary alternative placements; the employees' exposure to the public. A case-by-case evaluation is required for the determination of this process, and the employees must be permitted to register objections and reservations, including exemption applications.”
“A failure to include an exemption or reservation procedure would result in the policy falling foul of the Directive. Any South African mandatory vaccination policy is thus obliged to allow employees to approach the employer for an exemption. Where for example, a religious exemption is applied for, employers have an obligation to consider these exemptions carefully. When making such applications, employees have an obligation to, at a minimum, establish that: taking a vaccine interferes with their ability to practice their belief/ faith; and the ability to practice, which has been interfered with, is a central tenet of their faith,” added Zenani.
When these two criteria are met, Zenani said an employer would assume the obligation to prove that nature of the employee’s position inherently requires them to be vaccinated and reasonable measures were taken to accommodate the employee's belief. “Difficulties arise where an employer suspects that an exemption is applied for in bad faith, where an employer is unable to reasonably accommodate an employee, or where an employee rejects the offer of alternative arrangements made by the employer. Where an employer dismisses an employee for operational or incapacity reasons on the basis of their unwillingness to be vaccinated, a disgruntled former employee might argue that such a decision discriminated against them on the grounds of their religion.
“When approached with such discrimination cases, South African courts will ultimately undertake a proportionality exercise, weighing up the nature of the interference to the person's religion against the consequence for such refusal. Sachs J, in Christian Education South Africa v Minister of Education described the task of assessing religious discrimination claims as striking a balance between two very different interests. On the one hand “religious conviction and practice [which] are generally based on faith. On the other, public or societal concerns which are generally assessed ‘according to their reasonableness’. It is to be noted that jurisprudence on the matter regarding exemptions is not settled,” added Zenani.
“In October 2021, the Compensation Commissioner announced that the Compensation Fund would offer compensation to affected employees, for COVID-19 vaccine side-effects. The Commissioner's Notice provided that the Compensation Fund will cover employees for injuries, illness or death as a result of receiving the COVID-19 vaccine. For an employee to claim under the fund, the vaccination must be regarded as an inherent requirement of the job; decided after the employer's risk assessment, the employee must be vaccinated with a SAHPRA-approved COVID-19 vaccine; the employee must provide evidence of the employer's occupational health and safety risk assessment and vaccination plan; the chronological sequence between receiving the vaccine and the development of symptoms must be provided; and the symptoms and clinical signs must be ones that are generally recognised as side effects and additional tests may be required to assess the presence of abnormalities of any organ affected. If an employer institutes a mandatory vaccination policy, the employer must inform its employees of the availability of such COIDA claims,” concluded Zenani.
“COVID-19 is here to stay for the foreseeable future. As each sector adjusts to the new normal, competing interest arises between individual rights and the protection of a larger community. The emerging trend is that the authorities would likely uphold an employers' efforts to create safer working environments and maintain commercial activity, so long as those efforts remain within the borders of reasonability,” concluded Mahomed.
Writer’s Thoughts:
COVID-19 has opened up a new way of working, and things will continue like this for a while. In this new normal, organisations have had to deal with workplace safety, data privacy, adapting policies and procedures, remote working options and the impact on the wellbeing of their employees. Do you believe many employers and employees are still grappling with finding the proper adjustment in workplace practices, in the wake of what has since become the ‘new normal’? Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts.
[1] GAJB 24054-21.
