Labour Court rules against Solidarity in mandatory workplace vaccination case

The Labour Court gave its first verdict on vaccination in the workplace on Monday when it found in favour of an employer that restricted access to the workplace to employees who are not vaccinated and do not submit a negative Covid test.

According to law firm Cliffe Dekker Hofmeyr, the verdict to dismiss the urgent application offers a first look into judicial findings on vaccination status and workplace access.

Labour union Solidarity, acting on behalf of Johetta Van Rensburg, launched an urgent application in the Labour Court to challenge the admission policy of Ernest Lowe, a division of Hudago Trading, after Van Rensburg was refused entry when she arrived at work on 4 January this year.

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Vaccinate or test

Van Rensburg indicated that she was not willing to be vaccinated even before Ernest Lowe finalised its policy restricting access to its workplace to curb the spread of Covid-19, but said she was willing to submit a weekly Covid-19 test if it was at the employer’s expense.

Ernest Lowe informed her that it would not pay for the test and would therefore not allow her onto its premises and that the no-work-no-pay principle would apply.

Solidarity then wrote a letter on Van Rensburg’s behalf to Ernest Lowe, saying that the proposed “site entry policy” contravenes the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces issued on 11 June 2021.

The letter also stated that Ernest Lowe is unilaterally changing Van Rensburg’s terms and conditions of employment by adopting this policy, but Ernest Lowe still notified all its employees on 13 December 2021 that only employees who had been fully vaccinated or produced a weekly negative Covid-19 test result would be allowed on its premises and that it would not contribute to the cost of the tests.

Ernest Lowe disputed Solidarity’s allegations and said it implemented the admission policy in terms of its obligations under sections 8 and 9 of the Occupational Health and Safety Act (OHSA).

These sections set out the employer’s duty to provide and maintain, as far as possible, a safe working environment without risk to its employees’ health, as well as an undertaking that people who are not employees but may be directly affected by its activities are, as far as possible, not exposed to hazards to their health or safety.

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Changing terms of contract of employment?

Van Rensburg argued that the admission policy at Ernest Lowe breached several provisions of her contract of employment and that the Direction must be read as constituting implied, or alternatively, tacit terms and conditions of her employment contract.

She also argued that the site entry policy constituted a mandatory vaccination policy and Ernest Lowe did not comply with the requirements set out in the Direction to lawfully implement such a policy.

However, Ernest Lowe disputed her allegation that the admission policy constituted a mandatory vaccination policy and that its implementation breached her contract of employment. Ernest Lowe argued that the admission policy was introduced to comply with sections 8 and 9 of the OHSA and that the policy was not mandatory as employees had the option to submit a negative Covid test.

According to Cliffe Dekker Hofmeyr, the Labour Court had to determine whether Ernest Lowe’s policy was a breach or unilateral change to the terms and conditions of Van Rensburg’s employment contract and whether Ernest Lowe was obliged to adhere to the requirements set out in the Direction but failed to do so.

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Labour Court finding

Th Labour Court found that Van Rensburg could not identify a specific term of her employment contract that was breached because of or by the adoption of the admission policy and that no provision of her contract of employment was unilaterally changed by the admission policy either.

Therefore, no provisions needed to be restored as Van Rensburg’s contract was not changed or breached. The Labour Court also found that Van Rensburg failed to plead and demonstrate how the admission policy amounted to a mandatory vaccination policy, as the admissions policy does not refuse unvaccinated employees entry to the work premises.

The court found that requiring vaccination or submitting weekly negative Covid-19 tests at their own expense was not a breach of the contract of employment or a unilateral change to the terms of employment.

In fact, the court found that Ernest Lowe acted in accordance to its duties in terms of the OHSA, as well as the Direction.

“Whether the court’s interpretation that there is a distinction between an admission policy and a mandatory vaccination policy is competent, is yet to be seen. However, this remains to date the most authoritative decision South Africans have on access to the workplace for employees who are not vaccinated,” Cliffe Dekker Hofmeyr says.