Mandatory vaccinations: Monopolies Bullying their Sub-Contractors

A very concerning recent development is the demands that ‘monopolies’ place on their sub-contractors in respect of the vaccination of the employees of the sub-contractor.

These demands by the ‘monopolies’ are a blatant disregard for the right of another enterprise to conduct its business in a way that it deems fit. This is causing a predicament for SMMEs/sub-contractors, both from a business/commercial, as well as a moral point of view.

This indeed places the sub-contractor in a predicament.

The relationship between the ‘monopoly’ and the service provider (sub-contractor), is of a contractual nature. The following general legal principles therefore apply:

  • the rights and obligations of both parties are expressed in the contract;
  • the ability of one of the parties to amend the contract, after the conclusion thereof, is extremely limited;
  • if a contract, therefore, does not provide for the introduction of a demand for mandatory vaccines or the amendment of health and safety protocols, it will generally not be possible for the ‘monopoly’ to introduce, and/or enforce such a demand. However, as contracts differ, each case will have to be determined on its own merits; and
  • if a ‘monopoly’ unlawfully denies a sub-contractor the right of access to its premises, on the basis that the employees of the sub-contractor are not vaccinated, it may, depending on the circumstances, constitute a repudiation of the contract, which may result in a successful claim for damages. 

It may however be more complex than this. Although the contract between these parties is on the basis of equals, the sub-contractor might not perceive it that way. However, the saying and very important leadership principle “stand up to bullies”, always applies.

Gerhard Papenfus is the Chief Executive at the National Employers' Association of South Africa (NEASA).