Anti-vaxxers can be fired for refusing vaccine

On 11 June, 2021, Minister of Employment and Labour Thulas Nxesi gazetted a directive on Covid vaccination especially within the workplace.

The directive highlighted that employees may refuse to be vaccinated for either medical or constitutional reasons. On the other hand, the directive placed an obligation on employers to take necessary steps in ensuring that they provide their employees with a safe working environment.

The directive placed a further obligation on employers to undertake risk assessments to determine whether or
not they intend to make vaccination mandatory in their workplaces. The directive, therefore, does not make vaccinations mandatory in the workplace. It merely places a duty on companies to come up with reasonable measures to balance each other’s rights. The directive’s guiding idea is that employers and employees should treat one another with respect.

In the recent Commission for Conciliation, Mediation and Arbitration (CCMA) case between Theresa Mulderij and Goldrush Group, the commission found the employer’s decision to dismiss the employee for refusing to be
vaccinated to be substantively and procedurally fair. The CCMA found the employee had been permanently incapacitated based on her decision not to get vaccinated and, by implication, refusing to participate in the creation of a safe working environment.

This follows the employer’s extensive process of developing a mandatory vaccination policy in its workplace.

The development of this policy consisted of consultations with employees and trade unions over three months. Mulderij applied for exemption from the employer’s policy on mandatory vaccination and relied on her constitutional right to bodily integrity as laid out in Section 12 (2) of the constitution.

She also relayed to the employer her concerns of the side-effects the vaccine may have on her. Mulderij stated
in her application for exemption that the World Health Organisation, confirmed that the vaccine does not stop the spread of the coronavirus or prevent people from contracting the Covid virus, but only serves to minimise the
severity of symptoms and side-effects and minimise possible hospitalisation.

Goldrush had submitted to the commissioner that due to Mulderij’s duties as a business-related and training
officer, she could not be placed in any other position as she interacted with site owners and employees. The company submitted the purpose of making jabs mandatory in its workplace was to protect its employees by creating a safe environment for them by ensuring all employees were vaccinated.

ALSO READ: State capture report: Gigaba ‘a tool’ for Guptas

This case highlights an adjudica tor’s duty to balance the rights of each party. It is evident from the case that there is no right that is absolute. The commissioner is required, as done by the commissioner in this case, to establish based on the merits of each matter, which rights can be trumped.

This is where we see the battle between the employee’s bodily integrity and freedom of choice versus the em ployer’s right to maintain a safe and healthy working environment in the workplace. On this basis, adjudicators will have to assess each case based on its own merits.

Factors and considerations that should be taken into account include, among others, the nature of the position the employee occupies, alternative positions that the employee can be placed in, the reasons for the em ployee’s refusal to be vaccinated and reasons provided by the employer for opting to make vaccination mandatory.

• Molatudi is managing director, Chauke is senior associate and Mantutle is candidate attorney at Molatudi Attorneys in Johannesburg.