Labour Court makes first decision on employees refusing Covid-19 vaccine

The Labour Court made its first decision on whether dismissing an employee who refused to take the Covid-19 vaccine is automatically unfair dismissal and found that it was not.

The vaccination policy amounted to discrimination, but it was not arbitrary and therefore the court did not have the jurisdiction to arbitrate the complaint.

A Mr Maasdorp took the University of the Free State to the Labour Court after he was dismissed for refusing the vaccination. He did not apply for exemption either, Jean Ewang, employment law consultant and Thato Makoaba, candidate attorney at law firm Cliffe Dekker Hofmeyr, writes.

As part of its attempts to curb the spread of Covid-19, the university issued a vaccination policy in November 2021. This policy did not make vaccination an absolute requirement, but also allowed for employees to apply for an exemption on medical, religious or other grounds.

The university did not allow employees who did not have a negative Covid-19 test not older than seven days or an exemption on to the campus. Without yet deciding on fairness, the court accepted that this constituted discrimination in the sense that it differentiated between employees, Ewang and Makoaba write.

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Employee did not apply for exemption

The university made it clear to Maasdorp that he would not be able to enter the workplace without meeting these requirements but despite bringing the policy to his attention on various occasions, he remained adamant that he would not be vaccinated. He also did not apply for a Covid-19 vaccine exemption.

When the university instructed all employees to attend the workplace physically, Maasdorp was refused entry many times because he did not stick to the policy and his conduct resulted in disciplinary action and he was dismissed.

He was aggrieved by his dismissal and brought a claim to the Labour Court, alleging the dismissal was automatically unfair because it was based on an arbitrary (illogical) ground, Ewang and Makoaba write.

”As the court had accepted that the university’s policy resulted in discrimination, the issue before the court was whether the discrimination against Maasdorp was unfair on arbitrary grounds, therefore constituting an automatically unfair dismissal.”

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Covid-19 vaccine policy was in line with law and directive

The court found that the vaccination policy was not arbitrary, because the policy was formulated based on:

• The general scientific consensus regarding the value of Covid-19 vaccinations.
• The university’s obligations under the Occupational Health and Safety Act, where section 8(1) specifically stipulates that “every employer shall provide and maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of his employees”.
• The Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces of 11 June 2021, a directive published in terms of the National Disaster Regulations. This directive allowed employers to require the vaccination of their employees, subject to certain requirements.

The court said that there had been no unfair discrimination on arbitrary grounds and therefore did not have jurisdiction to adjudicate Maasdorp’s claim.

“The impact of the Covid-19 pandemic on the workplace is undisputed. This case echoes the crystalised law on automatically unfair dismissals. To argue automatically unfair dismissal based on arbitrary discrimination, the discrimination or differentiation must have no reasonable justification.

“However, in the case of Covid-19, there was a shared rationale among employers for issuing vaccination policies, supported by legislation and science. Therefore, this case is a useful starting point for employers when faced with similar claims in the Covid-19 realm,” Ewang and Makoaba say.