Employers likely to use CCMA ruling to dismiss unvaxxed employees – experts

Employers are likely to use the latest ruling by the Commission for Conciliation, Mediation and Arbitration (CCMA) to dismiss employees who refuse to be vaccinated against Covid, labour experts have warned.

The CCMA has pronounced against Johannesburg-based Goldrush Group staffer Theresa Mulderij, who lodged a dispute with the commission for unfair dismissal, after she was fired for refusing to be vaccinated against the pandemic.

In what has been seen as the first South African case of a dismissal of an anti-vaccine employee, labour experts were on Thursday unanimous in their response to the Mulderij hearing outcome – that it was set to be used by employers in dealing with workers resisting vaccination.

While National Employers’ Association of South Africa (Neasa) CEO Gerhard Papenfus, said the CCMA award did not create a legal precedent, he conceded that “it will influence” many employers to dismiss unvaxxed employees.

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Papenfus argued that the CCMA commissioner might have erred in applying the law.

“It is Neasa’s considered view that the commissioner may have committed an error in law.

“This type of scenario doesn’t fall within the known definition and scope of incapacity dismissals and, consequently, this renders the award reviewable.

“Neasa remains firmly opposed to mandatory vaccination policies,” said Papenfus.

In reaching his decision, the commissioner considered that:

• v The employer complied with the law by conducting extensive consultations with all relevant stakeholders which included trade unions and employees;
• v The employer permitted employees to apply for an exemption from the mandatory vaccination policy on constitutional or medical grounds; and
• v The basis for implementing mandatory vaccination was to ensure the health and safety of employees.