Don’t be so certain about the vaccine mandate

News of the CCMA allowing the dismissal of an unvaccinated person has spread faster than the virus. Anti-vaxxers are probably pretty upset. They just took a hit in lieu of the jab. Those on the other side of the fence seem to be celebrating a vicarious win.

It isn’t though.

Sure, the case tells us that there is an open door to dismiss somebody for refusing the vaccine but no court will hold that door open indefinitely for whatever reason. No. What the CCMA did was to open the door for whatever particular circumstances found themselves to be the substance of that one particular case. We should probably also wait to see if it goes under review to the Labour Court and then appeal to the Labour Appeal Court. Then there’s still the possibilities of heading to the apex courts so we could be in for a ride.

At the same time, Afriforum is duking it out with the University of the Free State and I’m willing to bet that there are tons of other cases on the go in various forums which are dealing with this issue.

Can I be fired for refusing to take the vaccine?

You’d be tempted to assume that, thanks to this CCMA case, the answer is an immediate yes. But wait! There’s more. Well, I mean, there’s more to it. Frankly, I’m pretty surprised that the media is hyping this CCMA case up so much. We all knew that this would be how it goes.

We’ve had case law on this for over 20 years… kinda.

Back in the day when there was far more ignorance over HIV, some dude got fired from SAA for having the virus. The airline contended that it was unsafe to its passengers to be in near contact with an HIV positive flight attendant. Cue a flurry of court cases over the years all dealing with factors that lead to substantially fair reasons for dismissing employees. Pregnancy, illness, social media behaviour; they’ve all been tested.

ALSO READ: Employers likely to use CCMA ruling to dismiss unvaxxed employees – experts

One thing that remains consistent throughout the tests is that if there is significant harm to the employer or others, or even any real risk of harm, the law will not fault an employer from taking action.

What kind of action is also important. If one is going to spend their working time locked up in a room in their own house and never meet with clients nor go into the office, why would an employer need them vaccinated? They wouldn’t. So it would be likely that in such an event, he law would side with the employee and not compel them to get vaccinated to keep their job, regardless of how their employer felt about it.

If, however, a person works in a small office with a pregnant woman with asthma, they would find it difficult to make a case for their freedom over that of the rights of the woman and employer collectively.

There’s also the question of alternatives. This is why so many institutions are doing the whole, if you’re unvaccinated, you need to present a negative test weekly at your expense rule. It is in anticipation of the few people who will argue that they cannot take the vaccination for some or other reason.

These policies have been in place by some employers for months now. Why? Because through the glory of legal certainty and precedence, we don’t need to wait to hear what the law will say. We can pretty easily make an educated estimate based on what the law has said previously.

What it has said previously is that collective rights to health trump personal liberties in many instances. This is why we can’t smoke in restaurants. This is why those owners of those restaurants are obligated to have working bathrooms even if they don’t want them. This is why those bathrooms have to be of a certain size regardless of the artistry of the architect.

This is why you shouldn’t be surprised that the CCMA allowed for the dismissal of a person refusing vaccination. What you should be wary of is believing that the CCMA will do it for all cases. Because sure, they can stop me from smoking in a dining hall full of people but there’s no reason to stop me smoking in my home.

You can stop me from coming into work if I’m unvaccinated, sure. Employers are going to have to start grappling with a more difficult question if they want to impose vaccine mandates; what if I don’t have to come into work at all?

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