COVID-19: CCMA finds mandatory vaccination policies to be unconstitutional and unreasonable

In the recent matter of Kgomotso Tshatshu vs Baroque Medical (Pty) Ltd, the Senior CCMA Commissioner found that the dismissal of the applicant due to her refusal to get vaccinated was unfair and awarded 12 months’ compensation to the applicant.

Although this dismissal occurred while the previous Consolidated Directions for Management of Covid-19 in the Workplace were still applicable, the exact same principles will apply under the new code.  

The Commissioner in essence found as follows: 

  • everyone, not only employees of a particular company, is equal before the law;
  • no legislation has been passed that requires all employees or citizens to be vaccinated as this would amount to unfair discrimination and be unreasonable;
  • the employer must prove that the discrimination is fair; there is no onus on the employee to prove anything; he or she can simply invoke his or her constitutional rights;
  • although a law of general application can limit the rights of citizens, laws are passed through a constitutionally entrenched process which clothes them with legitimacy. Employers do not have such inherent legitimacy and workplace policies are subject to the standards of reasonableness and fairness in addition to the requirements of section 36 of the Constitution; 
  • the directive, which was applicable at the time, does not provide for a blanket mandatory vaccine policy (neither does the current Code);
  • employees do not live in a cocoon, they can acquire Covid-19 anywhere;
  • there is no rational connection between the vaccination rule and its intended purpose;
  • the rule requiring vaccinations was unreasonable; and
  • vaccine policies are not only unreasonable but have no place in our labour market.

NEASA has always held the view that the various directives and codes dealing with Covid-19 in the workplace were unconstitutional and, apart from infringing on the constitutional rights of employees, held serious liability risks for employers electing to implement a mandatory vaccination policy. It is our view that this award is correct in its reasoning and, although not binding, may well be followed by other Commissioners.

It should also be noted that since the withdrawal of all health regulations by the Minister of Health, and therefore according to Government’s own version, there is no longer a general health risk posed by Covid-19. Consequently, it would be near impossible for any employer to be able to justify that a specific Covid-19 health risk exists in its workplace in the absence of a general health risk in the community where Covid-19 is circulating freely.

Our advice to employers remains the same as it has always been: steer clear of mandatory vaccination policies as they are not lawful or reasonable and will expose employers to unnecessary liability.