CCMA throws a spanner in the works – no, you can’t enforce mandatory vaccinations.

The CCMA ruled that an employee’s dismissal for refusing to be vaccinated was unfair. She was awarded the maximum compensation of 12 months: R279 000.

The employee, Kgomotso Tshatshu, had an adverse reaction to a flu vaccination a decade ago and was resistant to taking Covid-19 vaccine, in conflict with Baroque Medical’s mandatory vaccination policy.

CCMA Commissioner Richard Byrne found:
- “An employer has no right to formulate any Covid-19 vaccination mandate. It is the prerogative of government.  the right to issue any law of general application in respect of Covid-19 vaccinations rests with the government.”
- “Everyone, not just employees of a particular company, are equal before the law. The state has not unfairly discriminated against anyone in terms of vaccine policies. No legislation has been passed requiring all employees or citizens be vaccinated.”

The mandatory vaccination policy was therefore unreasonable. The dismissal, he said, was unconstitutional.  He did however recognise that the Consolidated Direction of Occupational Health and Safety permits mandatory vaccination policies in certain circumstances but ruled that it does not permit a blanket mandatory vaccination policy, and that the policies in all circumstances are not only unreasonable, but that they have no place in the South African labour market.

Contrary to a previous CCMA ruling with the same employer and the same policy.

Previously the CCMA ruled that Baroque Medical’s dismissal in terms of the same vaccination policy was justified and the retrenchment was a fair dismissal.

Baroque’s implementation of the policy was to ensure employees were not infected, ensure business continuity by reducing COVID-19-related absenteeism, and the creation of a healthy and safe work environment. Baroque did not, however, consider that there were any suitable alternatives to vaccination and decided that any employee who refused to be vaccinated would be considered to be in breach of the policy and may be terminated for operational requirements.

The commissioner’s approach
The commissioner’s conclusion that all mandatory vaccination polices are unreasonable is contrary to the Consolidated Direction of Occupational Health and Safety and the new Code of Practice on Managing COVID-19 in the Workplace. He did, however, acknowledge that the Consolidated Direction does permit mandatory vaccination policies in certain circumstances.

He said that he was unaware of any country that has introduced mandatory vaccination policies and stated that Baroque had not produced any evidence regarding the effectiveness of mandatory vaccination in any other organisations who have implemented it. He added that the vaccine does not prevent infection or transmission of the virus, and that employees can contract the virus outside of the workplace.

So what now?
Vaccinations are still part of the employer’s obligation, in terms of the Occupational Health and Safety Act, to provide a healthy and safe work environment, as far as reasonably practicable, which the commissioner did not take into account.

You need to:
1. Conduct a risk assessment of your workplace to justify the requirement for vaccination.
2. Justify the requirement for a mandatory vaccination policy in terms of the OHSA and Operational requirements.
3. Regularly update the Risk Assessment, and where necessary, amend the mandatory vaccination policy.

A risk assessment should include at least:
- Identify employees who might be at risk of contracting Covid and/or who might pose a risk to the spread of the disease;
- Workplace accommodation for those at risk of infection, or who are or may be infected.
- Ensure the reporting of Covid symptoms by employees and isolation of employees who are diagnosed with COVID-19 and are symptomatic;
- Enforce all the workplace protective measures required to be taken;
- Implement a procedure to resolve any issue that may arise from the HRA by an employee invoking the right to refuse to work.

Kgomotso Tshatshu vs Baroque Medical

Mark - 07:03 @ common, Industrial Relations, Human Resources, B-BBEE | Add a comment

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