Mandatory vaccinations in the workplace: CCMA awards receiving unwarranted attention

The recent CCMA awards upholding the dismissal, in one instance, and the suspension of an employee in another, have received widespread attention in the media, and have been portrayed as a blanket permission to dismiss employees for refusing to be vaccinated.

 There is, however, much more to this.

As already expressed previously, the decision to dismiss is, in our view, bad in law, and will in all probability be reviewed by the Labour Court. This view is shared by a number of commentators, including one of the most prominent labour law practitioners in the country.

The fact remains that CCMA awards do not create precedent, is not binding and is subject to review by higher courts, which, in all probability, will set these decisions aside.

Further to this, there is a much bigger picture to consider.

The CCMA has not and cannot determine the reasonableness of the infringement of constitutional rights. This determination falls within the purview of the courts and ultimately, the Constitutional Court.

The CCMA has not and cannot determine whether the Occupational Health and Safety Act or the Disaster Management Act can serve as a law of general application for purposes of limiting constitutional rights. What is clear is that the “Consolidated Coronavirus COVID-19 Direction on Occupational Health and Safety Measures in Certain Workplaces” which permits mandatory vaccinations in the workplace, under site-specific circumstances, is not a law but, at best, a guideline which cannot be relied upon to infringe constitutional rights in terms of section 36 of the Constitution.

Covid-19 does not exist in isolation at workplaces. It is found everywhere, and people are exposed to it at all times. The question as to whether a workplace rule requiring vaccination even achieves the purpose it was designed for, remains unanswered, and this is an important consideration when constitutional rights are limited.   

The fact that government has, to date, not implemented mandatory vaccination legislation is a telltale sign of the complexities surrounding this issue and the limitation of rights. Government rather decided to pass the buck to employers to drive its vaccination initiative, while government is exempted from any liability or pushback in this regard.

It is difficult to imagine how government will be able to implement mandatory vaccination at this stage, especially in light of the fact that isolation protocols for asymptomatic, Covid-19 positive people have been scrapped, based on the rationale, according to government, that  in excess of 60%-80% of South Africans have already contracted the virus and have immunity. This consideration will make it very difficult for employers to motivate that vaccinations are required to ensure a safe working environment, as mother nature has seemingly already done this job.

The fact is, should employers “force” employees by way of coercion or threat of dismissal to be vaccinated against their will, or dismiss those who refused to do so, they may well face class action lawsuits or liability claims down the road, should the courts determine that their actions were unlawful and unconstitutional.

Employers should be wary of placing their trust in CCMA awards, which may not stand the test of time, and should rather adopt a wait-and-see approach until the courts have finally determined the issue.

Please click here to view NEASA’s previous communications in this regard.

Please click here to view the analysis of a leading Labour Law practitioner.           

We will keep members abreast of developments in this regard.